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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PATRICK F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.S., Appellees.
No. 1 CA-JV 16-0151
FILED 9-20-2016
Appeal from the Superior Court in Maricopa County
No. JD29635
The Honorable William R. Wingard, Judge Pro Tempore
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
PATRICK F. v. DCS, A.S.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.
B R O W N, Chief Judge:
¶1 Patrick F. (“Father”) appeals the juvenile court’s order
terminating his parental rights. Father argues that given the relatively short
length of his prison sentence and his close relationship with his daughter,
the court erred as a matter of law when it determined the Department of
Child Safety (“DCS”) met its burden of proof. Because we conclude that
the court’s severance order is supported by reasonable evidence, we affirm.
BACKGROUND
¶2 Father and Guadalupe S. (“Mother”) are the biological
parents of A.S., born in 2011.1 In August 2014, DCS received a report that
Mother was abusing drugs and neglecting her children, including A.S.2
Father’s whereabouts were unknown to Mother at the time, but shortly
thereafter he began helping to take care of A.S. at his brother-in-law’s home.
In early October, Father had to leave the home after being involved in a
domestic violence incident with Mother.
¶3 Father was arrested on December 14, 2014 for arson and
burglary. Around that same time, A.S.’s maternal grandmother called DCS
to report that Mother had been arrested and A.S. had been left in
grandmother’s care without basic necessities. On December 18, DCS filed
a petition for dependency, alleging A.S. was dependent as to Mother and
Father based on substance abuse and neglect. Regarding Father, DCS
alleged he neglected A.S. by (1) failing to provide for basic needs including
food, shelter, clothing, and medical care; and (2) abusing drugs and alcohol.
DCS alleged further that Father had neglected A.S. due to abandonment
1 The juvenile court also terminated Mother’s parental rights, but she
is not a party to this appeal.
2 Father is not the biological parent of Mother’s other children.
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PATRICK F. v. DCS, A.S.
Decision of the Court
because he failed to establish a normal parent-child relationship and had
not seen or supported her for an extended period of time.
¶4 In March 2015, Father pled guilty to arson of a structure or
property, a class 4 felony, and was sentenced to two and one half years’
imprisonment with an expected release date of February 6, 2017, and an
early release date of November 21, 2016.
¶5 DCS served Father in jail with the dependency petition and
notice of hearing, but he did not appear at the initial dependency hearing.
The juvenile court found that Father failed to appear with no good cause
and the allegations of the dependency petition were deemed admitted
against him. The court therefore determined that A.S. was dependent as to
Father. At a subsequent status conference in June 2015, the court gave
Father the opportunity to contest the dependency petition because he was
in custody at the time of the initial dependency hearing. After discussion,
Father chose to waive his right to challenge the allegations of the
dependency petition and the court affirmed its prior findings. Father
requested that he be permitted to write letters to A.S., and have phone
contact with her. DCS raised no objection.
¶6 In August 2015, DCS filed a motion for termination based on
the length of Father’s prison sentence under Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(4). The juvenile court conducted a severance
hearing in March 2016, and heard testimony from the assigned case
manager, Father, and the maternal grandmother. Following closing
arguments from counsel, the court granted the motion, finding DCS had
proven by clear and convincing evidence that Father had been deprived of
his civil liberties due to his felony conviction and his sentence was of such
length that A.S. will be deprived of a normal home for a period of years.
The court also found that termination was in A.S.’s best interests. A formal
order was filed and this timely appeal followed.
DISCUSSION
¶7 In order to terminate parental rights, the juvenile court must
find at least one statutory ground is supported by clear and convincing
evidence and that termination is in the child’s best interests. 3 Linda V. v.
3 The juvenile court also found that severance would be in A.S.’s best
interests because A.S. is placed with her maternal grandmother, who has
provided a permanent, stable, drug-free home, and has continuously
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PATRICK F. v. DCS, A.S.
Decision of the Court
Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 78, ¶ 6 (App. 2005) (citation omitted).
As the trier of fact, the juvenile court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4
(App. 2004) (citation omitted). Accordingly, we view the facts in the light
most favorable to affirming the juvenile court’s order “unless no reasonable
evidence supports those findings.” Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189
Ariz. 553, 555 (App. 1997) (citation omitted).
¶8 In support of its motion to terminate based on length of
incarceration, DCS was required to prove that Father was deprived of his
civil liberties due to his felony conviction and his sentence “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). Explaining that A.R.S. § 8-533(B)(4) does not establish
a “bright line” definition as to “when a sentence is sufficiently long to
deprive a child of a normal home for a period of years,” our supreme court
has directed the juvenile court to consider all relevant factors, including,
but not limited to the following:
(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.
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29 (2000).
¶9 Father argues the juvenile court erred in granting the motion
for termination because he was the primary caretaker of A.S. for several
months prior to his incarceration and thus had developed a “close
relationship” with her. The record, however, fails to support Father’s
assertion. As to the first three years of A.S.’s life, the record is virtually
silent as to Father’s involvement in her life. Father testified that “at some
point” prior to August 2014, he and Mother and A.S. lived “as a family.”
He also testified that he provided financial support for A.S. “all through her
life” until the beginning of October 2014, even though Mother reported in
provided for the child’s needs. Father has not challenged the court’s best
interests finding.
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PATRICK F. v. DCS, A.S.
Decision of the Court
August 2014 that she did not know Father’s whereabouts. The record is
silent as to any other evidence supporting Father’s assertion that he had a
close relationship with A.S. before he was incarcerated. Although Father
took primary responsibility for the care of A.S. for approximately two
months starting in August 2014, testimony at the severance hearing
revealed he was abusing alcohol during that time and, as the juvenile court
found, up until the time of incarceration was “under the haze of drugs and
alcohol.” Moreover, Father was asked to leave his brother-in-law’s home,
where the child was residing, due to a domestic violence incident in which
he struck Mother.
¶10 Father also asserts that his relationship with A.S. could be
maintained during his incarceration. Regardless of whether his
relationship with A.S. could have been maintained, Father did very little to
maintain or nourish it. Maternal grandmother testified that she received
only one letter for A.S. from the time Father was incarcerated through the
date of the severance hearing, even though Father stated he had tried to
send letters, cards, and gifts but they were returned to him. And the case
manager testified that no visits or telephone contact had occurred between
A.S. and Father. Moreover, Father offered no evidence showing how
visitation or other involvement with A.S. could occur during the remainder
of his incarceration. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445,
451, ¶17 (App. 2007) (explaining that mother offered no evidence regarding
“individuals who could care for the children and facilitate visitation with
her in order to nurture the parent-child relationship while she was
incarcerated”).
¶11 Father next points to his “relatively short sentence,”
contending that if two and a half years is sufficient to satisfy the “period of
years” requirement under A.R.S. § 8-533(B)(4), then “virtually any sentence
will ultimately justify severances.” We acknowledge that a two-and-a-half-
year sentence may not deprive a child of a normal home in all cases. See
Jeffrey P. v. Dep’t of Child Safety, 239 Ariz. 212, 215, ¶15 (App. 2016)
(“Nothing in this Opinion should be taken to mean that a sentence of 2.5
years, as a matter of law, will suffice to support severance pursuant to § 8–
533(B)(4).”) But we disagree that a decision affirming the juvenile court's
decision in this case would justify termination based on any length of
sentence. The statute’s plain language requires that the sentence be for a
term of “years,” which necessarily means at least two years. A.R.S. § 8-
533(B)(4). More importantly, as directed by our supreme court, the
circumstances of each case must be evaluated in light of all relevant factors.
See Michael J., 196 Ariz. at 251, ¶ 29.
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PATRICK F. v. DCS, A.S.
Decision of the Court
¶12 A.S. was just three years old when Father was incarcerated
and will be five-and-a-half at Father’s maximum end date (February 6,
2017). Father will have been incarcerated for nearly half of A.S.’s life—
depriving A.S. of a normal home life in the meantime.4 See Maricopa Cty.
Juvenile Action No. JS-5609, 149 Ariz. 573, 575 (App. 1986) (explaining that
the “normal home” referred to in A.R.S. § 8-533(B)(4) relates to the
incarcerated parent’s “obligation to provide a normal home, a home in
which the respondent natural father has a presence”). Moreover, Father
admitted he has a substance abuse problem, and even though he has
participated in a drug treatment program while imprisoned, he
acknowledged he would not be able to take care of A.S. without additional
treatment upon his release. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 8 (App. 2002) (stating that the legislature’s use of the words “will
be deprived” in § 8-533(B)(4) means “’will have been deprived’ in total,
intending to encompass the entire period of the parent’s incarceration and
absence from the home.”).
¶13 Father’s lack of presence in the home had even greater impact
on A.S., given Mother’s now-permanent absence. Under the circumstances,
Father acknowledged that A.S. has been deprived of a “normal home” for
over two years because of his incarceration.” Nothing in the record suggests
that A.S. ever had a normal home from the time she was born until Father’s
incarceration, because even during the brief period of time Father spent at
his brother-in-law’s home taking care of A.S., he was abusing drugs and
alcohol.
¶14 Finally, to the extent Father suggests the juvenile court erred
by failing to consider his early release date, we disagree. Nothing in A.R.S.
§ 8-533(B)(4) requires a court to consider only the early release date in
4 Father cites S.B. v. Dep’t of Children & Families, 132 So.3d 1243 (Fla.
App. 2014), to shed light on the meaning of “period of years.” The court in
S.B. noted that based on a former statutory scheme, a four-year
incarceration period was insufficient to support severance of parental
rights. Id. at 1246. Applying the new statute, which requires a trial court to
evaluate several factors in determining the impact a particular sentence has
on the parent-child relationship, the appellate court found that four years
was insufficient to support terminating the father’s parental rights. Id. at
1245. Unlike the present case, the father in S.B. made significant efforts to
maintain a relationship with his daughters during his incarceration,
including sending them fifty letters over a sixteen-month period and
supporting them financially, prior to incarceration. Id. at 1244.
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PATRICK F. v. DCS, A.S.
Decision of the Court
determining whether a child has been deprived of a normal home for a
period of years. See Jeffrey P., 239 Ariz. at 214, ¶ 10 (noting that when a court
addresses the incarceration ground for termination of parental rights, the
court is not required to presume an early release).
¶17 After considering the evidence presented to the juvenile court
in light of the Michael J. factors, we conclude that reasonable evidence
supports the juvenile court’s finding that DCS met its burden of showing
the length Father’s sentence has deprived A.S. of a normal home for a
period of years pursuant to A.R.S. § 8-533(B)(4).
CONCLUSION
¶20 We affirm the juvenile court’s order terminating Father’s
parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
7