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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
COREY C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.C., Appellees.
No. 1 CA-JV 16-0397
FILED 3-14-2017
Appeal from the Superior Court in Maricopa County
No. JD528791
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Daniel R. Huff
Counsel for Appellee DCS
COREY C. v. DCS, B.C.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.
J O H N S E N, Judge:
¶1 Corey C. ("Father") appeals the superior court's order
terminating his parental rights to his child. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the parent of a child born in May 2015. Six weeks
before the child was born, Father was indicted on charges of organized
retail theft and taken into custody. After he pled guilty, the court sentenced
him in September 2015 to 2.5 years in prison, with presentence incarceration
credit of 161 days and a maximum release date in October 2017. In January
2016, the superior court ordered Father to submit to paternity testing.
Father initially refused to submit, but ultimately was determined to be the
child's father.
¶3 The child's mother's parental rights were terminated based on
abandonment in July 2016. Soon thereafter, the court held a contested
severance hearing on a motion by the Department of Child Safety ("DCS")
to sever Father's rights, at which a DCS case manager and Father testified.
The case manager testified that "[d]ue to [Father's] incarceration, [Father]
did not have a relationship with [the child]," and "[the child] doesn't have a
safe or stable parent to meet her needs." Father testified that his projected
release date is in March 2017, but he could be released as early as December
2016. He also testified he believes he can establish a relationship with his
child upon his release, and he is willing to work with DCS and engage in
services to establish a bond and reunite with his child.
¶4 The superior court granted termination on the ground that
Father's incarceration would deprive the child of a normal home for a
period of years under Arizona Revised Statutes ("A.R.S.") section 8-
2
COREY C. v. DCS, B.C.
Decision of the Court
533(B)(4) (2017).1 Father timely appealed.2 We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235(A)
(2017), 12-2101(A)(1) (2017) and Arizona Rule of Procedure for the Juvenile
Court 103(A).
DISCUSSION
¶5 The right to custody of one's children is fundamental, but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent's rights upon clear and
convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B),
Michael J., 196 Ariz. at 249, ¶ 12, and upon a finding by a preponderance of
the evidence that termination is in the best interests of the child, Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review the superior court's
termination order for an abuse of discretion; we will affirm the order unless
its factual findings are clearly erroneous, "that is, unless there is no
reasonable evidence to support them." Audra T. v. Ariz. Dep't of Econ. Sec.,
194 Ariz. 376, 377, ¶ 2 (App. 1998).
¶6 Father does not contest the court's best-interest finding, but
argues the evidence did not support the finding that his incarceration
"would deprive the child of a normal home with [Father] for a period of
years," pursuant to A.R.S. § 8-533(B)(4).
¶7 In determining whether a ground for termination exists under
§ 8-533(B)(4), a court should consider, inter alia:
(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.
1 Absent material revision after the relevant date, we cite a statute's
current version.
2 Child's mother is not a party to this appeal.
3
COREY C. v. DCS, B.C.
Decision of the Court
Michael J., 196 Ariz. at 251-52, ¶ 29. There is no particular length of sentence
justifying termination, and courts must consider the particular facts of each
case. Id. at 251, ¶ 29.
¶8 Father contends the superior court abused its discretion by
failing to consider the possibility he would be released from prison before
the absolute end of his term of incarceration. Contrary to Father's
contention, however, the court plainly considered his potential early
release, stating in its order that Father's "release date is anticipated to be no
earlier than March, 2017 and no later than October, 2017." The superior
court must consider the designated length of the sentence, but "[n]o
authority requires the court to presume an early release." Jeffrey P. v. Dep't
of Child Safety, 239 Ariz. 212, 214, ¶ 8 (App. 2016).
¶9 More generally, the superior court made the following
specific factual findings regarding each Michael J. factor:
. . . Father has been continuously incarcerated [since] prior to
the child's birth.
. . . There is no degree to which the parent-child relationship
can be continue[d] and nurtured during the incarceration,
because there was no relationship to nurture, and up until
April, 2016, Father was resisting efforts to establish paternity.
. . . The child was not born when [F]ather was incarcerated in
April, 2015. Father will be getting out no earlier than March,
2017, and no later than October, 2017.
At the time of the commencement of Father's incarceration,
the child was not yet born. At the time of trial, the child is
sixteen months old. As of March, 2017, the child will be
almost three years of age. As of October, 2017, the child will
be three and one half years old.
* * *
[Father] was convicted of Retail Theft, a felony offense under
Arizona law. [Father] was sentenced on September 15, 2015
to 2.5 years in the Department of Corrections. [Father's]
release date is anticipated to be no earlier than March, 2017
and no later than October, 2017.
. . . Mother's rights have been terminated.
4
COREY C. v. DCS, B.C.
Decision of the Court
. . . The child had not had a parental presence in her life.
Termination would not adversely impact the child as it relates
to any parental relationship.
These factual findings are supported by the evidence presented at trial.
Because the superior court plainly considered all six factors enumerated in
Michael J., and because the court's findings are supported by sufficient
evidence, the court did not err in finding the length of Father's incarceration
would deprive the child of a normal home for a period of years, pursuant
to A.R.S. § 8-533(B)(4).
CONCLUSION
¶10 For the foregoing reasons, we affirm the superior court's order
terminating Father's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
5
Corey C. v. Dcs, B.C.
Combined Opinion