Child Abuse & Neglect Article

Child Abandonment

What is Child Abandonment?

When most people hear the term “child abandonment,” they visualize the baby left on a church doorstep, or, as recently happened, a baby left in a supermarket shopping cart.  Yet, those “child abandonments” are relatively rare.  More often, children are abandoned in complicated and ugly domestic situations.  The drug addict who leaves her children with friends for months at a time without contacting them; the father who leaves the state with his new girlfriend and leaves no forwarding information; the woman who will be in prison for 7-10 years and fails to communicate with her children – these are the more common child abandonment scenarios.

Arizona law defines child abandonment by statute.  Arizona Revised Statute (A.R.S), Section 8-531(1) provides us with a legal definition of the term. 

“Abandonment” means 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 period of six months constitutes prima facie evidence of abandonment."

What exactly does this definition mean?  First, under Arizona law, every parent has a duty to financially support his or her children.  (A.R.S. §§12-2451, 25-501).  The parent who doesn’t provide financial support will have a major strike against him or her in an abandonment inquiry.  Parents must also maintain regular contact with the children. For the parent who lives in another state or country or for the parent who is incarcerated, this means visitation, phone calls, letters and gifts.  The parent must make a reasonable effort to maintain a relationship with the child. 

There is no “intent” element to abandonment.  That means it doesn’t matter if the parent did not intend to abandon the child.  The fact that time got away from the parent, that he or she simply fell out of contact with the child is irrelevant.  It’s the parent’s actions that count, not good intentions.

Child Abandonment and Child Neglect are Criminal Offenses

Child neglect and child abandonment often go together.  Child neglect is defined by A.R.S. § 8-201 (25).  The definition includes failing to provide clothing, food, shelter or medical care.  It also includes permitting children to be around toxic, volatile substances or drug manufacturing.  Children who are exposed to illegal drugs, and physically or sexually abused children are also considered neglected.  Babies born with illegal drugs in their system meet the definition of a neglected and abused child. 

Parents who neglect or abandon their children may be subject to criminal prosecution.  The minimum charge under A.R.S. § 13-3619 would be for a class 1 misdemeanor.  The possible penalties if convicted are: up to 6 months in prison, 3 years of probation and a $2,500 fine. 

If the District Attorney’s Office thinks it is warranted, it can prosecute under A.R.S. § 13-2623, which is a felony statute.  Under §13-2623, a parent can be prosecuted for “negligently” abandoning or neglecting the child. If convicted of this class 4 felony, the parent will serve a minimum prison term of one year.  If the parent “recklessly” abandons or neglects the child, he or she may be prosecuted under the same statute for a class 3 felony with a minimum prison term of 2 years.   If the jury finds that the parent “intentionally” abandoned or neglected the child, the penalty for this class 2 felony will be a minimum of 4 years in prison.

Child Abandonment and/or Neglect May Result in the Termination of Parental Rights

If the Arizona Department of Economic Security, through Child Protective Services, determines that the parent has abandoned the child or seriously neglected the child, the agency has the legal obligation to pursue action to terminate parental rights to the child.  How the agency handles the situation depends on the circumstances.  The state recognizes the fundamental right of a parent to parent his or her child.  For that reason, Child Protective Services will attempt to rehabilitate the parent and keep the family intact when possible.  For example: If mom or dad have drug or alcohol dependency, the agency will offer rehabilitation services and visitation with the child in the hope the parent can succeed in rehabilitation, become gainfully employed, and become able to create a stable home for the child.  

On the other hand, we see instances where reunification of the family is neither feasible nor desirable.  In those instances, the state will pursue a severance action.  When a severance action is initiated, the parent has the right to an attorney. The attorney will advocate for the parent in court. The state must prove its case for severance by clear and convincing evidence.  If the court terminates the parent’s rights, the parent has the right to appeal the decision.  

On appeal, the court considers the parent’s rights and the parent’s actions and balances the parent’s interests with the best interest of the child.  Michael J. v. Arizona Department of Economic Security, 196 Ariz.246, 995 P.2d 682 (2000).  In the Michael J case, the Arizona Supreme Court talked about the best interests of the child including a speedy determination of who will raise and nurture him.  The Court discussed the child’s need for stability and a normal childhood and that the child’s needs had to be a major consideration in the decision.

Resources

https://www.azleg.gov/arstitle/ (Arizona Statutes on State Legislature website)

https://www.courtlistener.com/opinion/1292043/michael-j-v-arizona-dept-of-economic-sec/
(Michael J. Decision)