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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO A.M.

No. 1 CA-JV 23-0127 

Appeal from the Superior Court in Maricopa County

No. JS21439

The Honorable Amanda S. Chua, Judge Pro Tempore, Retired

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellant

Vierling Law Offices, Phoenix

By Thomas A. Vierling

Counsel for Appellee

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Vice 

Chief Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

FILED 10/24/2023
IN RE TERM OF PARENTAL RIGHTS AS TO A.M.

Decision of the Court

2

K I L E Y, Judge:

¶1 Elias N. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to his child, A.M. For the following reasons, 

we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Diana M. (“Mother”), who never married, are the

biological parents of A.M., born in 2011. Although their relationship ended 

during Mother’s pregnancy, Father was present at A.M.’s birth. 

¶3 Viewed in the requisite “light most favorable to sustaining the 

juvenile court’s order,” In re O.M., 254 Ariz. 543, 544, ¶ 3 (App. 2023), the 

evidence shows that until A.M. was four years old Father visited her “about 

once a week” at her maternal grandmother’s home, where she and Mother

lived. Mother “facilitat[ed]” these visits by “transporting [Father] to see 

[A.M.].”

¶4 Father’s visits with A.M. gradually became “more 

inconsistent” until Mother “lost contact” with Father altogether in 2016. 

Because A.M. was “asking for him a lot,” Mother tried contacting Father by 

“reach[ing] out to his brother on Instagram.” Father’s brother informed her 

that Father “didn’t have a phone number” and suggested she try reaching 

him by calling A.M.’s paternal grandmother. He also promised to let Father 

know that Mother was trying to contact him. About two months later, 

Father called Mother from his mother’s phone but did not provide a current 

number for himself. 

¶5 In 2017, Mother “went to court regarding child support.”

After Father stated at the support hearing that “he wasn’t working and . . . 

was struggling with his health,” Mother withdrew her request, and the 

family court issued an order setting child support at “zero.” Mother and 

Father “did not enter any agreements regarding parenting time or legal 

decisions.” However, Mother urged Father to “come see” A.M., telling him 

“how much this child loved him.” 

¶6 One day in late 2017, Father picked A.M. up from the

maternal grandmother’s home and spent “all day” with her. Mother 

supported the visit because spending time with Father “made [A.M.] 

happy.” Father also dropped off presents for the child on Christmas in 2017 

but, for reasons that the record does not make clear, did not see her that 

day.
IN RE TERM OF PARENTAL RIGHTS AS TO A.M.

Decision of the Court

3

¶7 Mother met Ricardo A. in 2017, and they married in 2020. 

¶8 Mother changed her phone number in 2018. She did not 

provide Father with the new number because, she later explained, she 

“didn’t have contact with [him] any more [sic].” However, she remained in 

contact with his siblings via social media.

¶9 Father called the maternal grandmother once in 2018 to ask 

about visiting A.M. However, A.M. “was going to Mexico” for “a vacation,” 

so he did not see her. 

¶10 Since then, Father has not visited or communicated with A.M.

at all. At trial, Father claimed that he didn’t “reach out” to arrange a visit 

with A.M. because he purportedly “had no way of contacting” Mother, but 

he admitted that he could have called the maternal grandmother if he 

wanted to see A.M. 

¶11 In December 2019, Father suffered injuries during a “very 

serious accident” that left him in a coma. As a result, he experienced

significant memory loss and spent three months in the hospital “learning to 

speak, talk, and walk again.” At trial in March 2023, Father stated that his 

memory is still impaired and that he is unable to work because of his 

injuries. 

¶12 During his hospitalization, Father’s sister “Susan” (a 

pseudonym) reached out to Mother via social media, told her about Father’s

accident, and asked her to bring A.M. to the hospital to visit him. Concerned 

about how seeing Father in an injured state and “possibly[] . . . not even 

remembering” A.M. might affect the child’s “mental health,” Mother 

declined. 

¶13 Shortly thereafter, Susan reached out to Mother “about 

dropping off gifts” for A.M. Mother again declined, explaining that A.M. 

had already gone through the process of “healing” from Father’s absence, 

which could be undermined by renewed contact with Father’s sister.

¶14 Throughout A.M.’s life, Father has “never paid child 

support,” and A.M. has never lived with him. 

¶15 In September 2022, Mother petitioned to terminate Father’s 

parental rights on grounds of abandonment and incapacity under A.R.S. 

§ 8-533(B)(1) and (B)(3), respectively. In her petition, Mother listed her

home address as “protected” because she “did not know in what emotional,

mental state [Father] was going to be.”
IN RE TERM OF PARENTAL RIGHTS AS TO A.M.

Decision of the Court

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¶16 After a one-day hearing in March 2023, the juvenile court 

terminated Father’s parental rights as to A.M. solely on the abandonment 

ground. Father timely appealed. We have jurisdiction under A.R.S. 

§§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶17 A parent’s right to custody and control of his or her child, 

though fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 

196 Ariz. 246, 248, ¶¶ 11-12 (2000). The parental relationship may be 

terminated if the juvenile court finds, by clear and convincing evidence, at 

least one statutory ground for termination under A.R.S. § 8-533(B) and 

further finds, by a preponderance of the evidence, that termination is in the 

child’s best interests. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474, 

¶ 13 (2022). We view evidence in the light most favorable to sustaining the 

juvenile court’s findings, see Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 

205, 207, ¶ 2 (App. 2008), and we will affirm an order terminating parental 

rights absent an abuse of discretion, Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 

207 Ariz. 43, 47, ¶ 8 (App. 2004).

¶18 Father does not challenge the juvenile court’s determination 

that termination was in A.M.’s best interests. He argues, however, that the 

court’s determination that he “abandoned” A.M. “is clearly erroneous and 

not supported by substantial evidence.” 

¶19 Abandonment occurs when a parent fails to “provide 

reasonable support and to maintain regular contact with the child, 

including providing normal supervision.” A.R.S. § 8-531(1). To establish 

abandonment, the evidence must show that the parent has made only 

“minimal efforts to support and communicate with the child.” Id. “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.” 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. “What constitutes reasonable support, regular contact, and normal 

supervision varies from case to case.” Id. at 250, ¶ 20 (citation omitted). 

“Therefore, questions of abandonment are questions of fact for resolution 

by the trial court.” Id. (cleaned up).

¶20 Here, reasonable evidence supports the juvenile court’s 

finding that Father abandoned A.M. As the court noted, after 2017 Father 

“failed to maintain regular contact with the child,” “[t]he child received no 

cards or gifts from Father,” and “Father did not inquire as to the child’s 
IN RE TERM OF PARENTAL RIGHTS AS TO A.M.

Decision of the Court

5

well-being.” Although Father’s sister contacted Mother about A.M. twice in 

2019, efforts by Father’s family members to contact the child are irrelevant 

to Mother’s abandonment claim against Father. See also Steven M. v. Dep’t of 

Child Safety, 254 Ariz. 426, 430 ¶ 12 (App. 2023) (“The burden to act as a 

parent rests with the parent . . . .”) (citation omitted).

¶21 Father’s lengthy hospitalization following his accident in 2019 

does not establish “just cause” for his absence from A.M.’s life, see A.R.S. 

§ 8-531(1), because, at the time of Father’s accident, he had not seen A.M.

for two years and had only tried to contact her by phone once. When asked

by counsel why he didn’t “make more of an effort to see [his] daughter”

during the two years before his accident, Father replied, “I—don’t have [a]

response for that one.”

¶22 Relying on Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013), 

Father argues that Mother interfered with his relationship with A.M., 

thereby precluding a finding of abandonment. See id. at 293-94, ¶ 1 (“[A] 

parent who has persistently and substantially restricted the other parent’s 

interaction with their child may not prove abandonment based on evidence 

that the other has had only limited involvement with the child.”).

According to Father, Mother “obstructed” his relationship with A.M. by 

(1) changing her telephone number without telling him; (2) refusing to

bring A.M. to the hospital to visit him after his accident; (3) refusing gifts

from his sister Susan in 2019; and (4) listing A.M.’s current residence as

“protected” on the petition for termination despite there being “no

evidence that [Father] was a threat to her or the child.” Father further

accuses Mother of “do[ing] all in her power to eliminate [Father] as the

child’s father and to replace him with her husband” despite knowing that

Father is “limited in his ability to protect his parental relationship” due to

his “catastrophic injury.”

¶23 Calvin B. is readily distinguishable. There, the mother 

“persistently and substantially restricted [the father’s] interaction with their 

child,” refusing to allow him to exercise his court-ordered parenting time 

(in violation of their dissolution decree), seeking an order of protection 

barring him from any contact with the child, and refusing to allow him to 

speak with the child on the phone for at least six months. Id. at 293, 297-98, 

¶¶ 1, 21-24, 30. This Court held that, under those circumstances, the 

superior court erred by finding abandonment “given the hurdles that [the 

mother] erected to [father’s] ability to parent.” Id. at 297, ¶¶ 21, 25.

¶24 Here, although Mother “changed her phone number in 2018,” 

there is no evidence that Mother did so to prevent Father from contacting 
IN RE TERM OF PARENTAL RIGHTS AS TO A.M.

Decision of the Court

6

her or A.M. Indeed, Father could have contacted them via social media and 

through A.M.’s maternal grandmother, whose phone number and address 

Father knew. Similarly, Father’s contention that Mother interfered with his 

parent-child relationship by listing her address as “protected” on the 

termination petition she filed in 2022 overlooks both the alternative means 

of communication available to him and his failure to maintain a relationship 

with A.M. for over four years before Mother filed the petition. 

¶25 Mother’s unwillingness to bring A.M. to visit Father in the 

hospital in 2019 does not preclude a finding of abandonment in view of the 

amount of time that had passed since his last contact with the child in 2017 

and Mother’s explanation, which Father made no attempt to refute, that she 

feared that A.M. would suffer emotional harm if she saw Father in an 

injured condition. See In re C.R. & A.R., 105 Ariz. Cases Dig. 34, ¶ 15 (App. 

Sept. 19, 2023) (noting that one parent’s restriction of other parent’s access 

to their child precludes a finding of abandonment “only if” the restriction 

was “wrongful[]”) (emphasis omitted). Evidence in the record amply 

supports the court’s determination that Mother’s “actions do not rise to the 

level of interference required to establish a defense to abandonment.” 

¶26 In any case, even if Mother could be said to have interfered 

with Father’s relationship with A.M., a parent “must act persistently” to 

foster and maintain the parent-child relationship despite obstacles that may 

arise. See Michael J., 196 Ariz. at 250, ¶ 22. Irrespective of Mother’s conduct, 

Father had an obligation to act persistently to maintain his relationship with 

A.M. and “vigorously assert his legal rights to the extent necessary.” See id.

(citation omitted). Father made no such efforts. From 2017 until his accident

in 2019, he only visited A.M. once and called one other time. Although

Mother changed her phone number in 2018, he still could have contacted

her through his siblings or the maternal grandmother. He did not.

Similarly, he could have sought parenting time in family court, but he did

not. At bottom, despite a variety of ways in which Father could have

nurtured and maintained his relationship with A.M., he made no effort to

do so. Father’s longstanding failure to diligently maintain his relationship

with A.M. supports the juvenile court’s finding of abandonment. See In re

C.R. & A.R., 105 Ariz. Cases Dig. at ¶¶ 16, 20, 22 (rejecting father’s claim

that mother interfered with his relationship with the children by failing to

accept his phone calls because father “could have maintained his

relationship with the children in a variety of [other] ways,” including by

writing them letters and petitioning for court-ordered parenting time, “but

wholly failed to do so”).
IN RE TERM OF PARENTAL RIGHTS AS TO A.M.

Decision of the Court

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CONCLUSION

¶27 Because ample evidence supports the juvenile court’s finding 

of statutory grounds for termination and Father does not challenge the 

court’s determination that termination was in A.M.’s best interests, we 

affirm.