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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEPARTMENT OF CHILD SAFETY, Appellant,

v.

DESHANNON B., D.B., Appellee.

No. 1 CA-JV 19-0262

Appeal from the Superior Court in Maricopa County

No. JD33176

The Honorable Karen A. Mullins, Judge

VACATED; REMANDED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Dawn R. Williams

Counsel for Appellant

Robert D. Rosanelli Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellee DeShannon B.

FILED 4-30-2020
DCS v. DESHANNON B., D.B.

Decision of the Court

2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

J O N E S, Judge:

¶1 The Department of Child Safety (DCS) appeals the juvenile 

court’s order denying its motion to terminate the parental rights of 

DeShannon B. (Father) to D.B. (Child). For the following reasons, we vacate 

the court’s order, reverse its finding that DCS did not prove Father had 

abandoned Child by clear and convincing evidence, and remand for a 

determination of whether termination is in Child’s best interests.

FACTS AND PROCEDURAL HISTORY

¶2 Father is the parent of Child, born in 2011.

1 In September 

2016, DCS took temporary custody of Child, who is deaf, and filed a petition 

alleging Child was dependent as to Father.2 DCS alleged Father had not 

had any contact with Child “in the last six months or longer,” failed to 

provide financial support to Child, and had “abandoned his child by failing 

to maintain a normal parental relationship with his son without just cause.”

¶3 Father, who resided in California, appeared telephonically for 

a continued initial dependency hearing in December 2016. Father contested 

the allegations of the petition, indicating “he ha[d] contact with his child 

and provided clothing to [the child] in September.” The juvenile court, in 

relevant part, directed Father to contact DCS before coming to Arizona so 

visitation could be arranged.

1 “We view the facts in the light most favorable to upholding the 

juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 

549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 

205, 207, ¶ 2 (App. 2008)).

2 DCS also alleged Child was dependent as to his mother (Mother), 

and Mother’s parental rights were ultimately terminated in February 2019. 

She did not challenge the termination of her parental rights and is not a 

party to this appeal.
DCS v. DESHANNON B., D.B.

Decision of the Court

3

¶4 Subsequently, DCS “made several attempts to contact 

[F]ather to get visits started,” and was unable to do so until July 2017. 

Father then cancelled or missed all scheduled visits with Child until 

September 2017. That four-hour visit was the first and only time Father saw 

Child in the year that had passed since the dependency action was filed.

¶5 In October 2017, at the contested dependency hearing, Father 

entered a no-contest plea regarding the allegations in DCS’s petition. The 

court adjudicated Child dependent as to Father and adopted a case plan of 

family reunification.

¶6 In November 2017, over Father’s objection, DCS changed 

physical custody of Child to Jerry R. (Placement), who had known Child 

since birth and recently relocated to Arizona to help Child get “out of foster 

care.” During the six months before that, Placement had been making

weekly trips from his home in California to visit Child in Arizona. Father 

did not visit Child while in Placement’s care in Arizona — from November 

2017 to June 2018.

¶7 In June 2018, Placement moved with Child to Blythe, 

California, less than two miles away from Father’s home. By November 

2018, Father had yet to visit Child in Blythe, and DCS moved to terminate 

Father’s parental rights to Child on the grounds of abandonment pursuant 

to Arizona Revised Statutes (A.R.S.) § 8-533(B)(1);

3 see also A.R.S. § 8-531(1)

(defining abandonment).

4 Father still did not visit Child until March 2019 

— more than a year-and-a-half since his only other visit in September 2017 

— and then visited him only two or three times before the June 2019 

termination hearing.

¶8 At the June 2019 termination hearing, Father testified he saw 

Child “on a daily basis” when he picked up Child’s half-sister from her 

mother’s apartment “two doors away” from where Placement and Child 

3 Absent material changes from the relevant date, we cite the current 

version of rules and statutes.

4 In March 2019, DCS filed an amended motion to terminate Father’s 

parental rights, alleging an additional ground for termination pursuant to 

A.R.S. § 8-533(B)(8)(c) (providing for termination where a parent has been 

unable to remedy the circumstances that caused a child’s out-of-home 

placement for fifteen months or longer). The juvenile court found DCS

failed to prove termination was warranted on this ground. Because DCS 

does not challenge that ruling on appeal, it is affirmed.
DCS v. DESHANNON B., D.B.

Decision of the Court

4

lived in Blythe, California. On these occasions, Father would wave at or 

hug Child and “communicat[e] with him the best way [he] c[ould].” 

Although Father sometimes provided Child with toys or money, the 

ongoing DCS case manager, Placement, and even Father all testified that 

Father did not provide DCS or Placement any direct financial support for 

Child during the dependency.

¶9 After taking the matter under advisement, the juvenile court 

found that although DCS had presented prima facie evidence of 

abandonment by showing Father had not maintained a normal parental 

relationship with Child for more than six months without just cause, see 

A.R.S. § 8-531(1), DCS had nonetheless failed to prove that Father had 

abandoned Child by clear and convincing evidence. In relevant part, the 

court found:

Father did not establish a parent-child relationship 

with the Child after the Child’s birth, did not maintain regular 

contact with the Child throughout the course of this 

dependency action, and did not provide normal parental 

supervision. Over the course of the Child’s life, Father has 

gone long periods of time, far more than the six[-]month 

presumptive period, making no effort to contact his Child. 

One could easily conclude that Father has not acted 

persistently to establish a relationship with the Child, 

choosing instead to wait until a mere few months before the 

severance adjudication to begin any real effort to establish a 

parental relationship.

Nonetheless, [Placement] testified that Father is 

beginning to bond with the Child. And, while the court 

would have no difficulty concluding that it [] ha[s] been 

[Placement], rather than Father, that has persistently acted as 

a parent to this Child, abandonment does not turn on the best 

interests of a child alone. Moreover, DCS offered Father 

visitation at the start of this case, but did not arrange any 

visitation for Father once the Child relocated to Blythe. The 

DCS case manager simply told Father that if he had a problem 

setting up visitation with [Placement], he should contact her. 

DCS left Father to fend for himself. Father has now, though 

belatedly, attempted to do so, and has had at least some 

measure of success. Under these facts, while the court would 

have no trouble finding abandonment if Father had not

attempted to re-engage in visitation in March 2019 and if the 
DCS v. DESHANNON B., D.B.

Decision of the Court

5

standard of proof were less than clear and convincing, it 

cannot make such a finding under present circumstances and 

given the higher standard of proof.

DCS timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-

235(A), 12-120.21(A)(1), 12-2101(A)(1), and Arizona Rule of Procedure for 

the Juvenile Court 103(A).

DISCUSSION

¶10 DCS argues: (1) the juvenile court misinterpreted and 

misapplied the law when it found that although DCS had presented a prima 

facie case that Father had abandoned Child, it had failed to prove 

abandonment by clear and convincing evidence, and (2) insufficient 

evidence supports the court’s implicit finding that Father rebutted DCS’s 

prima facie evidence of abandonment. See Ariz. Dep’t of Econ. Sec. v. Rocky J., 

234 Ariz. 437, 441, ¶ 14 (App. 2014) (“The juvenile court will be deemed to 

have made every finding necessary to support the judgment.”) (quoting 

Matthew L., 223 Ariz. at 549, ¶ 7 (App. 2010)).

¶11 We review issues of statutory interpretation de novo. Ariz. 

Dep’t of Econ. Sec. v. Grant, 232 Ariz. 576, 579, ¶ 5 (App. 2013) (quoting 

Melgar v. Campo, 215 Ariz. 605, 606, ¶ 6 (App. 2007)). We will affirm a 

“juvenile court’s termination order ‘absent an abuse of discretion or unless 

the court’s findings of fact were clearly erroneous.’” E.R. v. DCS, 237 Ariz. 

56, 58, ¶ 9 (App. 2015) (quoting Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 

Ariz. 43, 47, ¶ 8 (App. 2004)). The court abuses its discretion when the 

record, “viewed in the light most favorable to upholding the trial court’s 

decision, is devoid of competent evidence to support[] the decision.” Cook 

v. Losnegard, 228 Ariz. 202, 205, ¶ 13 (App. 2011) (quoting Little v. Little, 193 

Ariz. 518, 520, ¶ 5 (1999)). A finding is clearly erroneous if no reasonable 

evidence supports it. Mary Lou C., 207 Ariz. at 47, ¶ 8 (quoting Maricopa 

Cty. Juv. Action No. JV-132905, 186 Ariz. 607, 609 (App. 1996)).

¶12 A juvenile court may terminate a parent’s parental rights 

upon clear and convincing evidence “[t]hat the parent has abandoned the 

child.” A.R.S. § 8-533(B)(1); Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t

of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). “Abandonment” means:

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 
DCS v. DESHANNON B., D.B.

Decision of the Court

6

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); see also Michael J., 196 Ariz. at 249-50, ¶¶ 17-18 (noting that, 

under the statute, “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”).

¶13 The juvenile court here found DCS proved “a prima facie case 

of abandonment . . . under A.R.S. § 8-531(1).” This finding is supported by 

the record, which reflects Father failed to communicate with or support 

Child for at least six months after the dependency was initiated. But, we 

reject DCS’s general argument that presentation of a prima facie case 

compels a finding of clear and convincing evidence to sever on

abandonment. To the contrary, when a prima facie case of abandonment is 

presented, it only creates a presumption in favor of the moving party; the 

burden then shifts to the parent to rebut the presumption of abandonment. 

See Nolte v. Winstanley, 16 Ariz. 327, 332 (1914) (holding, generally, that “[a]

prima facie case is one which is established by sufficient evidence and can be 

overthrown only by rebutting evidence adduced on the other side”) 

(quoting Gilpin v. Mo., K. & T. Ry. Co., 94 S.W. 869, 871 (Mo. 1906)). 

Nevertheless, “once th[e] presumption [of abandonment] has attached,” it 

may not be rebutted “merely by post-petition attempts to reestablish a 

parental relationship.” Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 

8 (1990). “Such an automatic rule would virtually eliminate any possibility 

of success for a petition in a contested termination action.” Id. (citation 

omitted).

¶14 Applying these principles to the specific facts presented here, 

we agree with DCS that the juvenile court erred in concluding DCS had 

failed to present clear and convincing evidence of abandonment under 

A.R.S. § 8-533(B)(1). The record reflects that by the time DCS filed a motion 

to terminate Father’s parental rights in November 2018, Child had been 

living with Placement less than two miles away from Father’s home for five 

months. Despite this immediate proximity, Father had not visited Child a 

single time. Thereafter, Father waited another four months to initiate 

meaningful contact and then only visited with Child two or three times 

before the termination hearing. Moreover, while Father might have seen 

Child in the community after Placement moved with Child to Blythe, most 

of these interactions were extremely brief — no more than ten or fifteen 
DCS v. DESHANNON B., D.B.

Decision of the Court

7

minutes. Father even admitted he did not “get to spend a lot of time with

[Child] . . . because [Child]’s [usually] running around with [other] kids.”

¶15 As noted, Father cannot rebut the presumption of 

abandonment with brief, accidental occasions of contact that occurred after 

DCS sought termination.5 See JS-500274, 167 Ariz. at 8. Nor is DCS’s 

diligence in assisting Father relevant; “neither [A.R.S.] § 8-533 nor federal 

law requires that a parent be provided reunification services before the 

court may terminate the parent’s rights on the grounds of abandonment.” 

Bobby G. v. Ariz. Dep’t of Econ Sec., 219 Ariz. 506, 510, ¶ 11 (App. 2008) (citing 

Toni W. v. Ariz. Dep’t of Econ Sec., 196 Ariz. 61, 64, ¶¶ 7-9 (App. 1999)). 

Finally, abandonment without just cause may be inferred from inaction. See 

Toni W., 196 Ariz. at 67, ¶ 19 (citation omitted).

¶16 The record here indicates that although Father “tr[ied] to 

communicate with [Child],” he was unable to do so because Child would 

“run[] and play with [other] kids,” and Placement made it difficult to see 

Child “[a]t times.” Yet, Father admitted that he did not seek assistance from 

DCS to facilitate visitation, despite service letters from DCS encouraging

him to engage in visitation with Child. And, while Father would sometimes 

give Child money or toys, there is no evidence in the record that DCS or

Placement ever received direct financial support for Child during the 

dependency. In sum, though Father may have had visual contact with 

Child “on a regular basis” after Placement moved with Child to Father’s 

neighborhood, these circumstances do not support a finding that Father 

had any sort of normal, supportive, or communicative parental relationship 

with Child.

¶17 The juvenile court did not point to any other evidence to 

support its conclusion that Father had rebutted the presumption of 

abandonment, and we discern none from the record. We thus conclude

competent evidence does not support the juvenile court’s implicit finding 

that Father rebutted the presumption of abandonment.

CONLCUSION

¶18 We reverse the juvenile court’s implicit finding that Father 

rebutted the presumption of abandonment and vacate the order denying 

5 To the extent the issue is raised on remand, we note that sincere postpetition efforts to reestablish a relationship may nonetheless be relevant to 

determining whether termination of parental rights is in a child’s best 

interests. See JS-500274, 167 Ariz. at 8.
DCS v. DESHANNON B., D.B.

Decision of the Court

8

DCS’s motion to terminate Father’s parental rights. The matter is remanded 

for a determination as to whether termination of Father’s parental rights is

in Child’s best interests. See Ariz. R.P. Juv. Ct. 66(C); A.R.S. § 8-533(B). The 

court has discretion to order additional evidence or argument it deems 

necessary to resolve the best-interests determination.