NOTICE: NOT FOR PUBLICATION.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
ROBERT P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 L.P., Appellees.
No. 1 CA-JV 14-0002
FILED 07-08-2014
Appeal from the Superior Court in Maricopa County
No. JD510709
The Honorable Brian K. Ishikawa, Judge
AFFIRMED
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety (“DCS”) is substituted for
the Arizona Department of Economic Security (“ADES”) in this matter.
See ARCAP 27. For ease of reference and consistency with the record
below, we refer to ADES in the text of this memorandum decision when
referring to either ADES or DCS.
ROBERT P. v. DCS, L.P.
Decision of the Court
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
C A T T A N I, Judge:
¶1 Robert P. (“Father”) appeals from the juvenile court’s order
terminating his parental rights. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Jennifer E. (“Mother”) are the biological parents
of L.P., who was born in October 2011.2 In September 2012, Father was
arrested on drug-related charges. He was subsequently found guilty and
sentenced to two and a half years in prison. Father has been in custody
continuously since September 2012 and is scheduled to be released in late
March 2015, with a possible early release in August 2014.
¶3 In January 2013, ADES took L.P. into custody after police
officers arrested Mother for a drug-related offense and for child neglect.
At the time, Father had been incarcerated for several months.
¶4 Father has a criminal history involving drug offenses dating
back to 2006. Father began using cocaine and marijuana when he was 15
years old, and he was addicted to heroin for approximately a year before
his arrest in September 2012. Father tried unsuccessfully to overcome his
2 The court also terminated Mother’s parental rights, but she is not a
party to this appeal.
2
ROBERT P. v. DCS, L.P.
Decision of the Court
heroin addiction by using prescription drug therapy to ease his
withdrawal symptoms, and he participated in formal drug rehabilitation
programs for five years prior to his current incarceration. Nevertheless,
Father was unable to overcome his addictions, and he was unable to
maintain sobriety when not in custody.
¶5 In January 2013, ADES filed a dependency petition alleging
L.P. was dependent as to Father because of Father’s failure to provide L.P.
with the basic necessities of life due to his incarceration. Father did not
contest the dependency allegations, and the court found L.P. dependent as
to Father. ADES encouraged Father to participate in services offered at
the prison, and Father has participated in various parenting and drug
treatment classes. Father requested visitation, and ADES assisted him in
arranging a few visits. Additionally, Father wrote approximately five
letters to L.P.
¶6 In August 2013, ADES filed a Motion for Termination of
Parent-Child Relationship alleging that the length of Father’s incarceration
would deprive L.P. of a normal home for a “period of years” under
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(4).3
¶7 In December 2013, after a one-day evidentiary hearing, the
court found that ADES had established a basis for severance under A.R.S.
§ 8-533(B)(4) due to the length of Father’s incarceration, and found
severance to be in L.P.’s best interests. Father timely appealed, and we
have jurisdiction under Article 6, Section 9, of the Arizona Constitution
and A.R.S. § 8-235(A).
DISCUSSION
¶8 Father argues that the evidence presented at the evidentiary
hearing was insufficient to warrant severance. He also challenges the
court’s finding that severance was in L.P.’s best interests.
I. Applicable Legal Standards.
¶9 The juvenile court may terminate the parent–child
relationship only if clear and convincing evidence establishes at least one
statutory ground for severance. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶
22, 110 P.3d 1013, 1018 (2005); see also A.R.S. § 8-533(B). The court must
3 Absent material revisions after the relevant date, we cite a statute’s
current version.
3
ROBERT P. v. DCS, L.P.
Decision of the Court
also find by a preponderance of the evidence that severance is in the
child’s best interests. Kent K., 210 Ariz. at 284, ¶ 22, 110 P.3d at 1018; see
also A.R.S. § 8-533(B). We review the juvenile court’s severance order for
an abuse of discretion, viewing the evidence in the light most favorable to
sustaining the court’s findings and accepting the court’s factual findings
unless clearly erroneous. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz.
43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004); Manuel M. v. Ariz. Dep’t of Econ. Sec.,
218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
¶10 The court may terminate an incarcerated parent’s parental
rights “if the sentence of that parent is of such length that the child will be
deprived of a normal home for a period of years.” A.R.S. § 8-533(B)(4).
The length of a parent’s felony sentence, by itself, is not dispositive;
“[i]nstead, the juvenile court must consider the many facts and
circumstances specific to each case.” Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 281, ¶ 9, 53 P.3d 203, 206 (App. 2002).
¶11 In Michael J. v. Arizona Department of Economic Security, 196
Ariz. 246, 251–52, ¶ 29, 995 P.2d 682, 687–88 (2000), the supreme court
provided further guidance regarding severance under § 8-533(B)(4):
The trial court, in making its decision, should consider all
relevant factors, including, but not limited to: (1) the length
and strength of any parent-child relationship existing when
incarceration begins, (2) the degree to which the parent-child
relationship can be continued and nurtured during the
incarceration, (3) the age of the child and the relationship
between the child’s age and the likelihood that incarceration
will deprive the child of a normal home, (4) the length of the
sentence, (5) the availability of another parent to provide a
normal home life, and (6) the effect of the deprivation of a
parental presence on the child at issue.
II. Reasonable Evidence Supports the Juvenile Court’s Findings
Regarding the Statutory Ground for Severance.
¶12 Addressing the first Michael J. factor, the juvenile court
concluded that Father’s relationship with L.P. was not substantial before
his incarceration in September 2012 due to Father’s severe heroin
addiction and incarceration for a substantial period of time beginning
March 2012. Although Father assisted Mother in providing care for L.P.
for approximately 10 months during the first year of her life, Father
admitted that he was not a good parent during that time period because of
4
ROBERT P. v. DCS, L.P.
Decision of the Court
his substance abuse problem. Thus, there is clear and convincing
evidence supporting the court’s finding that Father’s relationship with
L.P. was not substantial prior to his current incarceration.
¶13 As to the second Michael J. factor, the court concluded that
the degree to which Father can nurture his relationship with L.P. is limited
because Father cannot provide L.P. with financial support, stability,
shelter, or safety. Father argues that this factor does not favor severance
because he has tried to nurture his relationship with L.P. in person and
through correspondence. But Father’s drug use prior to his incarceration
impeded his ability to develop a relationship with L.P., and his current
incarceration has limited his contact with L.P. during that time to five
letters and approximately three visits. Thus, the juvenile court did not
abuse its discretion by finding that this factor weighs in favor of
severance.
¶14 As to the third Michael J. factor, the court concluded that L.P.
is at a “tender age” of two years old and that “[Father’s] incarceration
deprives [her] of a normal home that she desperately needs.” This factor
is supported by substantial evidence, because even if Father is released in
August 2014, L.P. will be almost three years old and will not have had a
normal home for most of her life.
¶15 Father argues that his release from incarceration when L.P. is
three years old means that she will have 15 years or the “vast majority of
her childhood” to benefit from being raised by Father. But L.P. is
dependent on others for her care, and she needs permanency, stability,
and consistency for her development. With Father’s incarceration and
Mother’s rights terminated, L.P. does not have a biological parent to
provide a normal home for her while awaiting Father’s release from
prison.4 Thus, substantial evidence supports the court’s findings and
conclusion as to this Michael J. factor.
4 Even after Father is released from custody, he will not be in a
position to immediately care for a child. The ADES Case Manager
testified that, because of Father’s history of heroin addiction and his
acknowledged inability to remain sober when not incarcerated, ADES
would require Father to demonstrate sobriety for at least six months after
release and to participate in parenting classes, substance abuse treatment,
and drug testing, and to undergo a psychological evaluation before a child
would be returned to his custody.
5
ROBERT P. v. DCS, L.P.
Decision of the Court
¶16 As to the fourth Michael J. factor, the court concluded that
Father’s sentence is sufficiently long to support severance. Father’s
“earliest release date is [August 26, 2014] and his community supervision
end date is [March 26, 2015].”5 Father does not dispute his criminal
record, his current incarceration, or his projected release dates. Instead, he
argues that this factor does not support termination because his
incarceration length of two and a half years is a “relatively short period,
given that [L.P.] will not reach adulthood for another fifteen years.” But
given Father’s limited relationship with L.P. for any period of her life,
together with his current incarceration, substantial evidence supports the
court’s findings and conclusions regarding this Michael J. factor. See Jesus
M., 203 Ariz. at 281, ¶ 8, 53 P.3d at 206 (“What matters to a dependent
child is the total length of time the parent is absent from the family[.]”).
¶17 As to the fifth Michael J. factor, the court concluded that
Mother is unable to provide a home for L.P. due to her parental rights
being severed. Father concedes that this factor favors termination of his
parental rights because there is no other parent available to provide a
normal home life for L.P. during his incarceration.
¶18 As to the sixth Michael J. factor, the court concluded that
Father’s sentence is of such a length that L.P. will be deprived of a normal
home for a period of years. By the time Father is released, L.P. will have
been deprived of a normal home for most of her life and would continue
to be deprived of such a living arrangement until Father complies with
community supervision and reunification services. Father argues that this
factor does not favor termination of his parental rights because he has
tried to continue to nurture his relationship with L.P. through visits,
letters, cards, and a gift. But given the absence of a prior significant
relationship and given Father’s limited ability to nurture a parent–child
relationship with L.P. during his incarceration, substantial evidence
supports the court’s findings and conclusion as to this Michael J. factor.
Accordingly, the trial court did not abuse its discretion by concluding that
clear and convincing evidence establishes that Father’s sentence is of such
length that L.P. will be deprived of a normal home for a period of years.
¶19 Father argues that his participation in Arizona Department
of Corrections (“ADOC”) programs and his plans for success upon release
5 The court’s written findings reflect Father’s community supervision
end date as March 26, 2014, which appears to be a typographical error;
Exhibit 11 lists the end date as March 26, 2015.
6
ROBERT P. v. DCS, L.P.
Decision of the Court
are other relevant factors that should have been considered. But the court
acknowledged Father’s participation in ADOC-offered programs, finding
that Father “has taken advantage of numerous programs in [ADOC],
including Positive Parenting Treatment, Prison Fellowship’s Re-entry
Program, Back to Basics, and Narcotics/Alcohol Anonymous.” The court
also found, however, that “even upon his release from [ADOC], [Father]
would have to comply with his community supervision and ADES
services,” which would cause L.P. to continue to be deprived of a normal
home for additional time. Accordingly, the court considered the factors
Father cites, including his efforts to maintain a relationship with L.P., but
nevertheless concluded that severance was warranted under the
circumstances presented here.
¶20 Because clear and convincing evidence supports the court’s
findings, the court did not abuse its discretion by finding that ADES
established a statutory basis for severing Father’s parental rights to L.P.
III. Reasonable Evidence Supports the Juvenile Court’s Finding That
Severance Is in L.P.’s Best Interests.
¶21 Father argues that the juvenile court’s best interests finding
is not supported by the evidence because the proposed adoption plan
would not benefit L.P. We conclude otherwise.
¶22 To determine whether severance is in the best interests of a
child, the court balances the parent’s rights against the child’s rights. Kent
K., 210 Ariz. at 287, ¶ 37, 110 P.3d at 1021. Termination of the parent–child
relationship is in the child’s best interests if the child would be harmed if
the relationship continues or would benefit from termination. Mary Lou
C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50. Factors to consider include (1)
whether an adoptive placement is immediately available, Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998),
(2) whether the current placement is meeting the child’s needs, id., and (3)
whether the child is adoptable. See Maricopa County Juv. Action No. JS-
501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994).
¶23 The juvenile court made the following finding regarding a
possible adoption plan:
Termination of [Father’s] rights would benefit the child
because it will allow the child to gain permanency through
adoption. Termination of [Father’s] parental rights would
further the plan of adoption. The child is residing with her
maternal great aunt who is committed to adopting her. The
7
ROBERT P. v. DCS, L.P.
Decision of the Court
maternal great aunt can provide the child with all of her
physical, emotional, educational, medical and social needs.
The child is adoptable. The child’s current placement is the
least restrictive consistent with the needs of the child.
¶24 The evidence supports this finding. The ADES Case
Manager testified that L.P.’s placement with her maternal great aunt
provides L.P. with a secure environment where L.P. has flourished, and
L.P. has bonded with her foster parent. The current placement meets all
of L.P.’s social, educational, and emotional needs, and L.P.’s maternal
great aunt is willing to adopt her. Thus, because severance of Father’s
parental rights will allow L.P. to be adopted into a permanent and stable
home where her needs are met, the juvenile court did not did not abuse its
discretion by finding that severance is in L.P.’s best interests. See James S.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App.
1998).
CONCLUSION
¶25 For the foregoing reasons, we affirm the juvenile court’s
termination of Father’s parental rights to L.P.
:gsh
8