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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JERRY P., Appellant, 

v.

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

No. 1 CA-JV 14-0210

Appeal from the Superior Court in Maricopa County

No. JD16784

The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

John L. Popilek, PC, Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Carol A. Salvati

Counsel for Appellee Department of Child Safety
JERRY P. v. DCS, A.P.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in 

which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.

C A T T A N I, Judge:

¶1 Jerry P. (“Father”) appeals the superior court’s order 

terminating his parental rights to his son A.P. based on abandonment. For 

reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND 

¶2 A.P. was born in January 2011. Father had been incarcerated 

since September 2010 and was not present at A.P.’s birth. A.P.’s mother 

(“Mother”) was arrested in October 2012, after which the Arizona 

Department of Child Safety (“DCS”) removed A.P and his siblings from 

Mother’s care.

1 A.P. and five of Mother’s other children were placed with 

his maternal great-aunt and uncle. Father was released from prison in midJune 2014.

¶3 In August 2013, while Father was still incarcerated, DCS 

moved to terminate Father’s parental rights on grounds of abandonment.2 

At the contested severance trial in July 2014, Father testified that he began 

writing letters to A.P. after DCS filed the severance motion. Father 

acknowledged that he had never met A.P., and that he had never provided 

any support while in prison even though he received income from his 

Native American tribe ranging from $270 to $500 each quarter. Father 

admitted that the only information he knew of A.P was through a letter 

from the placement. Father also admitted that he did not have a normal 

parent–child relationship with A.P. and that he was unable to parent A.P. 

“at the moment.” The DCS caseworker testified that Father had not 

 

1 Mother’s parental rights were also terminated, but she is not a party 

to this appeal.

2 DCS originally asserted that the length of Father’s felony sentence 

was an additional basis for severance, but withdrew that allegation after 

Father’s release.
JERRY P. v. DCS, A.P.

Decision of the Court

3

contacted DCS or requested any visits with A.P. either before or after his 

release from prison.

¶4 At the conclusion of the hearing, the superior court 

terminated Father’s parental rights, finding that DCS had proven by clear 

and convincing evidence Father had abandoned A.P. See Ariz. Rev. Stat. 

(“A.R.S.”) § 8-533(B)(1).

3 The court further found that A.P.’s great-aunt and 

uncle were willing to adopt A.P and concluded that that “[i]t is in the best 

interests of the child to be out of the system and adopted with his siblings.”

¶5 Father timely appealed. We have jurisdiction under A.R.S. §

8-235(A).

DISCUSSION

¶6 Father argues the superior court erred by (1) terminating his 

parental rights notwithstanding his efforts to maintain a relationship with 

A.P. and to improve his parenting abilities while in prison and (2) 

terminating his parental rights even though DCS had not provided any 

services.

¶7 To terminate parental rights, the superior court must find by 

clear and convincing evidence at least one statutory ground for severance

and must find by a preponderance of the evidence that termination would 

serve the child’s best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 

Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We accept the court’s factual 

findings “unless no reasonable evidence supports those findings” and will 

affirm a termination of parental rights “unless it is clearly erroneous.”

Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 449, ¶ 12, 153 P.3d 1074, 

1078 (App. 2007) (citation omitted).

¶8 Abandonment is defined by statute as:

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 a normal 

parental relationship with the child without just cause for a 

 

3 Absent material revisions after the relevant date, we cite a statute’s 

current version.
JERRY P. v. DCS, A.P.

Decision of the Court

4

period of six months constitutes prima facie evidence of 

abandonment.

A.R.S. § 8-531(1). Abandonment is measured by the parent’s conduct, not 

his subjective intent. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,

249–50, ¶ 18, 995 P.2d 682, 685–86 (2000). 

¶9 Although imprisonment alone does not justify severance 

based on abandonment, imprisonment does not preclude severance on this 

basis either. An incarcerated parent “must act persistently to establish the 

relationship however possible and must vigorously assert his legal rights 

to the extent necessary.” Id. at 250, ¶ 22, 995 P.2d at 686 (citation omitted).

¶10 Here, sufficient evidence supported the finding of 

abandonment. Father testified that he knew A.P. was his son “when 

[Mother] was two months [pregnant],” which was prior to his incarceration.

Although Father took parenting classes while incarcerated in an effort to 

develop his parenting skills, he acknowledged that he had no relationship 

with A.P. and that he would not be able to effectively parent A.P. or provide 

for his special needs as of the time of the severance trial.

¶11 Father failed to provide any support for or to maintain any 

consistent contact with A.P. Father did not begin sending A.P. letters until

months after DCS filed its severance motion. Further, Father failed to

provide any of his quarterly income or any other financial support to A.P. 

Father admitted at the severance hearing that even though he received 

information about the case while he was incarcerated, he never requested 

visitation through the court or his attorney. Father also acknowledged that 

upon release from prison, he did not attempt to visit A.P. or inquire about 

visitation with the DCS case manager. Under these circumstances, the court 

did not err by finding that Father had abandoned A.P.

¶12 Father additionally argues that severance was improper 

because DCS failed to provide him any services. Because Father did not 

raise this issue before the superior court however, he has waived the issue 

on appeal. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶ 

18, 319 P.3d 236, 241 (App. 2014). Moreover, in the absence of an existing 

parent–child relationship, a parent is not entitled to reunification services 

when severance is sought based on abandonment. See Toni W. v. Ariz. Dep’t 

of Econ. Sec., 196 Ariz. 61, 64, 66, ¶¶ 9, 15, 993 P.2d 462, 465, 467 (App. 1999).

¶13 Father does not challenge the superior court’s best interests 

finding, and we find no error in the court’s determination that severance 

was warranted.
JERRY P. v. DCS, A.P.

Decision of the Court

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CONCLUSION

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

order terminating Father’s parental rights as to A.P.