NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

NICHOLAS S.

, Appellant

,

v.

ARIZONA DEP A RTMENT OF ECONOMIC SECURITY, E.S., S.M.

, Appellee s

.

N o . 1 CA

- JV 13

- 0283

Appeal from the Superior Court in Navajo County

No. S0900JD20110 0 015

The Honorable Michala M. Ruechel

, Judge

AFFIRMED

COUNSEL

John A . Banker, Attorney at Law, Taylor By John A . Banker Counsel for Appellant

Arizona Attorney General’s Office

, Phoenix By Michael F. Valenzuela

C ounsel for Appellee Arizona Department of Economic SecurityNICHOLAS S. v. ADES, et al.

Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

N O R R I S

, Judge:

¶1 Nicholas S. (“Father”) appeals from the superior court’s order terminating his parental rights to his daughter

, E

. S. On appeal, he argues the superior court should not have found he fail ed to appear a t the initial severance hearing without good cause. He also argues the Arizon a Department of Economic S ecurity (“ADES”) fail ed to notify him promptly

of reunification service s and failed to present sufficient evidence that he

had abandoned E.S. and that termination was in E.S.’s best interests. For
the reasons discussed below, we disagree with Father’s arguments and

affirm the superior court ’s order

.

FACTS AND PROCEDURAL BACKGROUND

¶2 E.S. was born in March 2004 to Sarah M

. Although Father acknowledged paternity

, he did not maintain regular contact with E.S.

after her birth

. Father joined the mi litary in 2008. O n March 11, 2011,

ADES took E.S. and her sibling 1 into custody because Sarah M. was

u nab le to provide the children with a suitable living arrangement

. ADES placed the children with the ir maternal grandmother. On Marc h 16, 2011, ADES filed a dependency petition, alleging Father had neglected E.S. by abandoning her. At that time

, Father was stationed in Iraq.

¶3 On May 17, 2011, at the initial dependency hearing, Father’s counsel accepted service of the operative depen dency petition and, as reflected in the minute entry from the hearing, asked the superior court to

find Father in “ default ” for failing to appear. The court did so, noting Father was in the military and deployed overseas

. The court then found E.S. dependent as to Father.

1 Father was not the sibling’s father.NICHOLAS S. v. ADES, et al.

Decision of the Court

3 ¶4 Father returned to the United States from Iraq in May 2011.

O n January 7, 2013

, ADES moved to terminate Father’s parental rights under Arizona Revised Statutes (“A.R.S.”) section 8

- 533(B)(1) (2014) (abandonment)

. 2 At the initial termination hearing, Father’s counsel

informed the court Father would not be contesting termination

. T he court

found Father had been properly served with the motion to terminate through counsel, had notice of the hearing, and had failed to ap pear. The

court thus “deemed [him] to have admitted the allegations set forth in the [termination motion]” and scheduled a subsequent termination hearing to allow ADES to present evidence in support of its motion.

¶5 On April 8, 2013, Father moved to vaca te the superior court’s May 17, 2011 entry of “default” for failing to appear at the initial dependency hear ing , citing the Servicemembers Civil Relief Act (“SCRA”)

. See 50 U.S.C. A. app. § § 5 0 1 to 597b ( West, Westlaw through

P.L. 113

- 92 (excluding P.L. 113

- 79 and 113

- 89) ). The superior court denied

the motion.

¶6 At the subsequent termination hearing

, ADES presented

evidence Father had fail ed to provide reasonable support for and to maintain regular contact with E.S. for a period exceeding six months. See
A.R.S. § 8

- 531(1) (201 4). Over ADES’s objection, the court allowed Father

to testif y telephonically and to present witnesses , including witnesses who

addressed E.S.’s best interests. See A.R.S. § 8

- 533(B) (2014)

. The court

found ADES had proven Fath er had abandoned E.S. and termination was
in E.S.’s best interests, and it terminated Father’s parental rights.

2 Although the Arizona Legislature amended statutes cited in this decision after ADES filed the dependency petition, the revisions are

immaterial to the resolution of this appeal. Thus, we cite to the current

version of these statutes

.NICHOLAS S. v. ADES, et al.

Decision of the Court

4 DISCUSSION

I. Father’s Failure to Appear

¶7 Father first argues the superior court should not have found he waived his rights 3 and thereby admitted the allegations in the motion

to terminate by failing to appear at the initial termination hearing . Father asserts he was deprived of an opportunity to testify “ on the issue of

abandonment ” and argues t he superior court should have s tayed the termination proceedings sua sponte pursuant to § 522 of the SCRA or, alternatively, should have granted his motion to vacate the entry of

“default

. ” We disagree.

¶8 We note, first, that Father’s argument is premised on a misunderstanding of the pr oceedings in this case. As discussed, supra ¶ 5

, Father mo ved to vacate the “default” for failing to appear at the initial dependen cy hear ing ; he did not move to vacate the superior court’s finding

he had waived his rights by fail ing to appear at the initial termination hearing. Father did not appea l the dependency ruling

, even though that ruling w as separately appealable. See Lindsey M. v. A riz. D ep ’ t of E con. S ec. , 212 Ariz. 43, 45, ¶ 5, 127 P.3d 59, 61 (App. 2006). Thus, Father’ s argument that the superior court should have granted his motion to vacate the entry

of “default” is not properly before us. We nevertheless address Father’s

argument the superior court should have stayed the termination proceedings sua sponte pursuant to § 522 of the SCRA. See Kenneth B. v.

Tina B. , 226 Ariz. 33, 36, ¶ 12, 243 P.3d 636, 639 (App. 2010) (appellate court reviews issues of law de novo).

¶9 Section 522 of the SCRA applies to “ any civil action or proceeding ” i f the defendant is in m ilitary service or within 90 days of

termination or release from service and has received notice of the proceeding

. 50 U.S.C. A. app. § 522(a) . The section entitles a servicemember to a stay of the proceeding upon a showing that

, inter alia

, the serviceme mber’s military duties “materially affect the servicemember’s ability to appear.” 50 U.S.C. A. app. § 522(b)(1), (2)

.

3 Although Father makes this argument in terms of an entry
of “default,” in Christy A. v. A rizona Department of Economic Secur ity , 217 Ariz. 299, 306, ¶ 24, 173 P.3d 46 3, 470 (App. 2007), we explained that a “finding of waiver of rights” is the “more proper[]” terminology.NICHOLAS S. v. ADES, et al.

Decision of the Court

5 ¶10 B ecause Father was in the military during the pendency of the termination proceedings and had received notice of the proceedings

, § 522 wa s applicable

. Father , however, never applied for a stay

, and the superior court was not required to grant one su a sponte

. See 50 U.S.C. A.

app. § 522(b)(1) (“[T]he court may on its own motion and shall, upon application by the servicemember, stay the ac tion for a period of not less than 90 days . . . .” (emphasis added)).

¶11 In addition, the record does not reflect Father’s military

duties materially affected his ability to appear during the pendency of this

case . Although Father did not appear at the initial termination hearing, his counsel advised the court he was not going to contest termination of his parental rights

. Further, t he record contains no evidence Father’s military duties prevented him from appearing at the initial severance hearing, and , indeed, he appeared telephonically at later hearings.

¶12 For these reasons, we reject Father ’ s argument the superior court should have stayed the termination proceedings sua sponte pursuant to § 522 of the SCRA.

II. Noti fication of Re unification S ervices

¶13 Next, Father argues ADES was required to notify him promptly of available reunification services. ADES, however, has no duty to notify a parent of available reunification services before seeking

termination of parental rights when, as here, there is no pa rent

- child relationship and the statutory ground for termination is abandonment

. Toni W. v. A riz. D ep’t of E con. S ec. , 196 Ariz. 61, 66, ¶ 15 , 993 P.2d 462, 467 (App. 199 9). Moreover, although not required, ADES attempt ed to

contact Father on numerous oc casions by letter , phone, and email regarding the availability of reunification services before moving to terminate his parental rights

. Yet, Father never r esponded to these efforts

.NICHOLAS S. v. ADES, et al.

Decision of the Court

6 III. Sufficiency of the E vidence 4

A. Abandonment

¶14 Next, Father argues ADES failed to present sufficient

evidence he had abandoned E.S. He asserts in particular that his failure to establish a normal parental relationship with her was with legal justification

-- his military service. We disagree.

¶15 ADES m ust show, by clear and convincing evidence, that

Father abandoned E.S

. A.R.S. § 8

- 537(B) (2014); Ariz. R.P. Juv. Ct. 66(c)

.

“ [A] bandonment is measured not by a parent’s subjective intent, but by the parent’s conduct: [ A.R.S. § 8

- 531(1) ] asks whether a pa rent 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. v. A riz. D ep’t of

E con. S ec. , 196 Ariz. 246, 249

- 50, ¶ 1 8, 995 P.2d 682, 685

- 8 6 (2000 ). “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).

¶16 Here, ADES presented overwhelming evide nce Father

abandoned E.S. without legal justification. Although Father was deployed

when ADES took E.S. into custody, he returned to the United States in May 2011

. He the reafter made no effort to establish a parental relationship with E.S. and did not provide E.S. with any financial support

or medical, dental, or educational benefits which were available to E.S.

because of Father’s military service

. An ADES u nit supervisor also testified Father had not sent E.S. any gifts, cards, letters, photo graphs of himself, or clothing since at least March 2011. Moreover, E.S. did not

know Father was her father

. Furthermore, Father failed to appear at the

initial termination hearing and thus ad mitted the motion’s allegations that he had failed to provide E.S. with reasonable support and appropriate parental supervisio n. See A.R.S. § 8

- 863 (2014).

4 We review the superior court’s decision to terminate parental rights for an abuse of discretion and will not disturb its findings unless they are c learly erroneous with no reasonable evidence to support

them. Mary Lou C. v. Ariz. Dep’t of Econ. Sec. , 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).NICHOLAS S. v. ADES, et al.

Decision of the Court

7 ¶17 Given this evidence, the superior court did not abuse its discretion in finding ADES had present ed sufficient evidence that Father

had abandoned E.S.

B. Best In terests

¶18 Finally, Father argues ADES failed to present sufficient

evidence that termination of his parental rights was in E.S.’s best interests.

See Ariz. R.P. Juv. Ct. 66(c). Specifically, Father argues termination of his parental rights would jeopardize the relationships E.S. has established with her pa t e r nal grandparents and half

- siblings

. 5 We disagree with this argument as well.

¶19 ADES presented evidence that E.S. ’s maternal grandmother, who had expres sed an interest in adopting E.S., both allowed and encouraged E.S. to visit her paternal grandparents on a regular basis and

had no intention of discontinu ing those visits. The superior court found that although “[t]he potential loss of the relationship b etween [ E.S. ] and her paternal grandparents is very troubling[,] . . . the Court cannot find that it outweighs the need [for E.S. ] to have the stability, security and permanence that an adoption would provide.” The court also found that

the military benef its Father could provide did not “make up for the permanence [lost by E.S.] by being a ward of the Court for years” and would not provide her with the “safety and security of having a permanent and stable home that adoption would provide.” Given this

evid ence, the superior court did not abuse its discretion in finding termination of Father’s parental rights was in E.S.’s best interests.

5 The record reflects E.S. had only met her half

- siblings once, over the July 4, 2013 holiday week end.NICHOLAS S. v. ADES, et al.

Decision of the Court

8 CONCLUSION

¶20 For the foregoing reasons, we affirm the superior court’s order terminating Father’s parental rights to E. S.