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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

ERBEY B., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.B., A.S., E.S., R.B., Appellees.

No. 1 CA-JV 15-0351 

Appeal from the Superior Court in Maricopa County 

No. JD27950 

The Honorable Sally Schneider Duncan, Judge 

AFFIRMED 

COUNSEL 

Robert D. Rosanelli, Phoenix 

By Robert D. Rosanelli 

Counsel for Appellant 

Arizona Attorney General’s Office, Tucson 

By Daniel R. Huff 

Counsel for Appellee DCS
ERBEY B. v. DCS, et al. 

Decision of the Court 

2

MEMORANDUM DECISION 

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

Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined. 

J O N E S, Judge: 

¶1 Erbey B. (Father) appeals the juvenile court’s order 

terminating his parental rights to E.B., A.S., E.S., and R.B. (collectively, the 

Children), arguing the Department of Child Safety (DCS) failed to prove 

the statutory ground of abandonment by clear and convincing evidence. 

For the following reasons, we affirm. 

FACTS1 AND PROCEDURAL HISTORY 

¶2 In March 2014, DCS assumed temporary custody of the 

Children, ages nine, eight, seven, and six, after receiving a report from the 

school that E.B. and E.S. were to be suspended for behavior issues, but the 

school had been unable to reach the Children’s mother for several days. 

Father was in prison at the time and unable to parent.2

¶3 DCS filed a petition alleging the Children were dependent as 

to Father on the grounds of abuse and neglect. Father waived his right to 

contest the allegations of the petition, and, in May 2014, the juvenile court 

adjudicated the Children dependent as to Father.3 Father was encouraged 

 

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

juvenile court’s order terminating parental rights. 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 Although paternity had not been established for the three younger 

children at the time the petition was filed, genetic testing, initiated by DCS, 

later confirmed Father is the biological parent of all four children.

3 The Children were also adjudicated dependent as to their mother. 

She did not participate in the case plan, and her parental rights were 

severed in January 2015. She did not appeal that order and is not a party to 

this action. 
ERBEY B. v. DCS, et al. 

Decision of the Court 

3

to participate in any services available to him while in prison that would 

improve his parenting skills and address concerns regarding domestic 

violence. In addition, he was advised to “try and build a relationship with 

[the Children] through cards, letters, and gifts” and approved to have 

supervised phone contact. 

¶4 In November 2014, over Father’s objection, the case plan was 

changed to severance and adoption. DCS immediately filed a motion to 

terminate the parent-child relationship, alleging severance was warranted 

based upon his incarceration pursuant to Arizona Revised Statutes (A.R.S.) 

section 8-533(B)(4).4 DCS later amended the petition to allege abandonment 

pursuant to A.R.S. § 8-533(B)(1). Father was released from custody ten days 

prior to trial, and DCS proceeded solely upon a theory of abandonment. 

¶5 At the severance hearing in October 2015, Father admitted he 

had been incarcerated for most of the Children’s lives and had not had 

significant contact with the Children since he first went to prison in 2008, 

when the oldest of the Children was four. During the short time Father was 

not incarcerated in 2012, he engaged in domestic violence with the 

Children’s mother. As a result, E.B. suffers from post-traumatic stress 

disorder, and R.B. expressed a desire to have no contact with Father. 

¶6 In the nineteen months the Children were in an out-of-home 

placement, Father sent one card to the Children in the summer of 2014; he 

sent a letter to the Children in the summer of 2015; and he sent one 

additional letter and made a single phone call to E.B. only shortly before the 

severance hearing. Although Father was employed while in prison, the 

Children did not receive any gifts or financial support from him during that 

time. Father had no contact with DCS outside of court hearings and 

provided no documentation to show he completed any services while 

incarcerated. 

¶7 At the conclusion of the severance hearing, the juvenile court 

noted Father, by his own admission, had been “steadily incarcerated with 

the exception of a three-month period since 2008.” The court found Father 

had not maintained a normal parental relationship with the Children for a 

period longer than six months, without just cause, and “paid no support, 

sent no cards, gifts, or letters, nor made any contact whatsoever with the 

children.” Accordingly, the court determined DCS had proven 

abandonment by clear and convincing evidence. The court also found 

 

4 Absent material changes from the relevant date, we cite a statute’s 

current version. 
ERBEY B. v. DCS, et al. 

Decision of the Court 

4

severance to be in the Children’s best interests and entered an order 

terminating the parent-child relationship. Father timely appealed. We 

have jurisdiction pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1), -2101(A)(1), 

and Arizona Rule of Procedure for the Juvenile Court 103(A). 

DISCUSSION 

¶8 A parent’s rights to a child may be terminated if “the parent 

has abandoned the child.” A.R.S. § 8-533(B)(1). Abandonment is defined 

as:

[T]he 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 period of six months constitutes prima facie 

evidence of abandonment. 

A.R.S. § 8-531(1). In order to terminate a parent’s rights to his children, 

abandonment must be proven by clear and convincing evidence. See Ariz. 

R.P. Juv. Ct. 66(C).5 Father argues DCS failed to meet this burden. We 

disagree. 

¶9 On appeal, Father does not dispute the juvenile court’s factual 

findings, but he argues that severance was improper because any efforts he 

might have made to maintain a relationship with the Children were 

“doomed to fail” as a result of his incarceration. However, when 

circumstances prevent a parent from exercising “traditional methods of 

bonding with his child,” that parent “must act persistently to establish the 

relationship however possible and must vigorously assert his legal rights 

to the extent necessary.” Pima Cnty. Juv. Severance Action No. S-114487, 179 

Ariz. 86, 97 (1994) (citing In re Raquel Marie X, 559 N.E.2d 418, 428 (N.Y. 

1990)). These principles apply where, as here, the parent, as a result of his 

incarceration, “has no immediate and obvious” tie to his children. Id. at 90-

91, 97; see Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 25 (2000). 

In the absence of such a requirement, “a young child languishes in limbo —

 

5 The juvenile court must also find by a preponderance of the evidence 

that severance is in the child’s best interests, Ariz. R.P. Juv. Ct. 66(C); Kent 

K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005), but Father does not argue 

insufficient evidence supports this finding. 
ERBEY B. v. DCS, et al. 

Decision of the Court 

5

surrendered by the mother, unclaimed by the father, and bonding with 

others — from which the law cannot extricate the child without lengthy 

proceedings compounding the harm.” S-114487, 179 Ariz. at 97. 

¶10 We do not doubt Father faced a significant challenge in 

establishing and maintaining a relationship with the Children — who 

ranged in age from one to four years old when Father was first incarcerated 

eight years ago — while in prison. But, the record does not demonstrate 

Father asserted his rights to the Children or acted to establish a relationship 

with them during that period. Although the case plan permitted Father to 

have supervised telephone calls with the Children and required him to 

build a relationship through cards, letters, and gifts, the entirety of Father’s 

participation in the Children’s lives during the nineteen months they were 

in an out-of-home placement consisted of one card, two letters, and one 

phone call. The Children received no gifts from him; nor did he provide 

financial support for the Children. He did not have any contact with the 

DCS caseworker outside of court hearings and left it entirely to DCS to 

request genetic testing of the children for whom paternity had not been 

established. See id. at 98-99 (noting a parent must “do more than just wait 

to respond” to the actions of other parties; “he need[s] to affirmatively act

to establish his rights”). Incarceration alone does not justify a failure to 

make more than minimal efforts to support and communicate with a child, 

Michael J., 196 Ariz. at 250, ¶ 21, and Father does not provide any other 

explanation for his failure to act. 

¶11 Father also argues he did not abandon the Children because 

DCS failed to prove any “conduct on the part of the parent which implies a 

conscious disregard of the obligations owed by a parent to the child, leading 

to the destruction of the parent-child relationship.” However, this 

“conscious disregard” standard has been rejected in cases where the parent 

has no existing relationship with the child. See S-114487, 179 Ariz. at 97. 

Instead, “we judge abandonment by conduct, not by subjective intent” and 

measure a parent’s actions against the statutory definition of abandonment 

found in A.R.S. § 8-531(1). Id.; see Michael J., 196 Ariz. at 250, ¶ 19. Here, 

reasonable evidence supports the juvenile court’s determination that Father 

abandoned the Children. See S-114487, 179 Ariz. at 99 (affirming 

termination of parental rights on the basis that “the father abandoned the 

child because he failed to promptly and persistently grasp the opportunity 

to develop a relationship with his child or assert his legal rights”).

¶12 Lastly, Father argues the circumstances giving rise to his 

inability to parent were not his fault, but that of “the government, when it 

sentenced him to prison.” Contrary to Father’s contention, however, Father 
ERBEY B. v. DCS, et al. 

Decision of the Court 

6

is solely responsible for the acts leading to his conviction and causing him 

to be removed from society. Cf. Sherman/Bertram, Inc. v. Cal. Dep’t of Emp’t, 

21 Cal. Rptr. 130, 132 (Ct. App. 1962) (“[C]laimant’s unemployment was the 

result of his own fault — his own willful and felonious act in leaving the 

scene of an accident in which he was involved without complying [with 

applicable law requiring him to stop].”), cited with approval in Magma Copper 

Co., San Manuel Div. v. Ariz. Dep’t of Econ. Sec., 128 Ariz. 346, 349 n.2 (App. 

1981). To blame the criminal justice system for having denied Father his 

children by putting him in prison for his felonious conduct is nothing more 

than an exercise in sophistry. See id.

CONCLUSION 

¶13 The juvenile court’s order terminating Father’s parental rights 

to the Children is affirmed.