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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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.

FILED 8-15-2017
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

2

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.
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

3

¶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 GreatGrandparents 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.
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

4

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.
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

5

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. 
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

6

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 courtordered 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.
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

7

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.
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

8

¶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).
MICHAEL M. v. KATIE A., E.O.

Decision of the Court

9

CONCLUSION

¶26 For the foregoing reasons, we affirm the superior court’s 

order severing Father’s parental rights to E.O.