NOTICE: NOT FOR PUBLICATION.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

ARIZONA COURT OF APPEALS DIVISION ONE

NICHOLAS S., Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, E.S., S.M., 

Appellees.

No. 1 CA-JV 13-0283

Appeal from the Superior Court in Navajo County

No. S0900JD201100015

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

Counsel for Appellee Arizona Department of Economic Security
NICHOLAS S. v. ADES, et al.

Decision of the Court

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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 failed to appear at the 

initial severance hearing without good cause. He also argues the Arizona 

Department of Economic Security (“ADES”) failed to notify him promptly 

of reunification services 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 military in 2008. On March 11, 2011, 

ADES took E.S. and her sibling1 into custody because Sarah M. was 

unable to provide the children with a suitable living arrangement. ADES

placed the children with their maternal grandmother. On March 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 dependency 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. 

 1Father 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. 

On 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. The court 

found Father had been properly served with the motion to terminate 

through counsel, had notice of the hearing, and had failed to appear. 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 vacate the superior court’s 

May 17, 2011 entry of “default” for failing to appear at the initial 

dependency hearing, citing the Servicemembers Civil Relief Act

(“SCRA”). See 50 U.S.C.A. app. §§ 501 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 failed 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) (2014). Over ADES’s objection, the court allowed Father 

to testify 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 Father had abandoned E.S. and termination was 

in E.S.’s best interests, and it terminated Father’s parental rights. 

 2Although 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

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DISCUSSION

I. Father’s Failure to Appear

¶7 Father first argues the superior court should not have found

he waived his rights3 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 the superior court should have stayed 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 proceedings in this case. As discussed, supra ¶ 5, 

Father moved to vacate the “default” for failing to appear at the initial 

dependency hearing; he did not move to vacate the superior court’s finding 

he had waived his rights by failing to appear at the initial termination

hearing. Father did not appeal the dependency ruling, even though that 

ruling was separately appealable. See Lindsey M. v. Ariz. Dep’t of Econ. Sec., 

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” if the defendant is in military 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 servicemember’s military duties “materially affect the 

servicemember’s ability to appear.” 50 U.S.C.A. app. § 522(b)(1), (2). 

 

3Although Father makes this argument in terms of an entry 

of “default,” in Christy A. v. Arizona Department of Economic Security, 217 

Ariz. 299, 306, ¶ 24, 173 P.3d 463, 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

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¶10 Because Father was in the military during the pendency of 

the termination proceedings and had received notice of the proceedings, 

§ 522 was applicable. Father, however, never applied for a stay, and the 

superior court was not required to grant one sua 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 action 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, the 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. Notification of Reunification Services

¶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 parent-child 

relationship and the statutory ground for termination is abandonment.

Toni W. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 61, 66, ¶ 15, 993 P.2d 462, 467 

(App. 1999). Moreover, although not required, ADES attempted to 

contact Father on numerous occasions by letter, phone, and email 

regarding the availability of reunification services before moving to 

terminate his parental rights. Yet, Father never responded to these efforts. 
NICHOLAS S. v. ADES, et al.

Decision of the Court

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III. Sufficiency of the Evidence4

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 must 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 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. v. Ariz. Dep’t of 

Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18, 995 P.2d 682, 685-86 (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 evidence 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 thereafter 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 unit supervisor also 

testified Father had not sent E.S. any gifts, cards, letters, photographs 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 admitted the motion’s allegations that 

he had failed to provide E.S. with reasonable support and appropriate 

parental supervision. See A.R.S. § 8-863 (2014).

 4We review the superior court’s decision to terminate 

parental rights for an abuse of discretion and will not disturb its findings 

unless they are clearly 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

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¶17 Given this evidence, the superior court did not abuse its 

discretion in finding ADES had presented sufficient evidence that Father

had abandoned E.S.

B. Best Interests

¶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 paternal grandparents and half-siblings.5 We disagree with this 

argument as well.

¶19 ADES presented evidence that E.S.’s maternal grandmother, 

who had expressed 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 discontinuing those visits. The superior court found 

that although “[t]he potential loss of the relationship between [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 benefits 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 

evidence, the superior court did not abuse its discretion in finding 

termination of Father’s parental rights was in E.S.’s best interests. 

 5The record reflects E.S. had only met her half-siblings once, 

over the July 4, 2013 holiday weekend. 
NICHOLAS S. v. ADES, et al.

Decision of the Court

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CONCLUSION

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

order terminating Father’s parental rights to E.S.