Mark T. v. Ariz. Dep't of Econ. Sec.

MARK T., Appellant, v. ARIZONA DEPARTMENT OFECONOMIC SECURITY, F.W., A.T., L.T., Appellees.

No. 1 CA-JV 15-0385

ARIZONA COURT OF APPEALS DIVISION ONE

May 26, 2016

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. JD527035

The Honorable Timothy J. Ryan, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant

Arizona Attorney General's Office, Mesa

By Amanda L. Adams

Counsel for Appellee DCS

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.

JONES, Judge:

¶1 Mark T. (Father) appeals the termination of his parental rights to A.T., L.T., and F.R. (collectively, the Children), arguing the Department of Child Safety (DCS) failed to prove: (1) the statutory grounds for severance by clear and convincing evidence, and (2) that severance was in the Children's best interests by a preponderance of the evidence. For the following reasons, we affirm.

FACTS¹ AND PROCEDURAL HISTORY

¶2 In January 2013, the Children's mother (Mother), while pregnant with F.R., obtained an order of protection prohibiting all contact between Father and the older children following a domestic violence incident. In May 2013, F.R. was born prematurely with serious stomach and other medical issues and immediately placed in the neonatal intensive care unit. In September 2013, the hospital was prepared to release F.R., but Mother had not learned how to care for her and appeared under the influence of drugs during her visits. The Children, then age four, two, and four months, were taken into DCS custody because of concerns that Mother was abusing methamphetamine and unable or unwilling to care for F.R.'s special needs. The older children were placed with a maternal aunt, and F.R. with a licensed foster family prepared to address her medical issues.²

At the time, Father's whereabouts were unknown, and he had never met F.R. DCS immediately filed a dependency petition, alleging the Children were dependent as to Father on the grounds of abandonment and neglect.³

¶3 Father was incarcerated in November 2013, and DCS was eventually able to locate him and encourage him to engage in services offered at the jail addressing parenting skills, substance abuse, and domestic violence. Father contested the dependency but submitted the issue to the juvenile court on the record. In April 2014, the court adjudicated the Children dependent as to Father and confirmed a case plan of family reunification concurrent with severance and adoption. That same month, Father pled guilty to one count of theft of means of transportation, a class three felony, and was sentenced in June 2014 to three and a half years' imprisonment with credit for two hundred days of presentence incarceration.

¶4 Father completed numerous programs in prison, including classes addressing parenting skills, substance abuse education and prevention, anger management, public speaking, money management, critical thinking skills, job training, and Spanish language. Father wrote several letters to DCS, requested updates on the Children, and asked that they visit him in prison. He also sent several letters and cards to the Children. The Children's therapist, maternal aunt, Court-Appointed Special Advocate, and DCS case manager agreed a prison visit and/or access to the letters would be disruptive and inappropriate. F.R. had never met Father and was a medically fragile infant, and consistent with reports from family members that Father "never had a substantial relationship with any of the children" even prior to his incarceration, the older children had little, if any, memory of Father. Therefore, no visits were scheduled, and communications from Father were given to the Children's placement relative to keep for the future. Father remains incarcerated with an anticipated release date between August 2016 and May 2017.

¶5 Because Mother refused to participate in services and Father was unavailable to parent, in September 2014, the juvenile court orderedthe case plan change to severance and adoption over Father's objection. DCS filed a motion to terminate the parent-child relationship alleging severance was warranted as to Father as a result of his lengthy incarceration. Mother's parental rights were terminated in October 2014 when she failed to appear at trial.⁴ Father contested the allegations and proceeded to trial in November 2015.

¶6 In addition to providing information regarding Father's incarceration, DCS presented evidence that the Children were adoptable and in adoptive placements, and severance was in the Children's best interests because it would provide them the opportunity for permanency in safe, stable homes. Father agreed the Children were in loving, stable, and appropriate placements and it would not be in their best interests to visit him in prison, but testified the Children need only wait for him to be released from prison to achieve permanency and stability because "it would only be right for them to be raised by a parent."

¶7 After taking the matter under advisement, the juvenile court found DCS had proven by clear and convincing evidence that termination of Father's parental rights was warranted because Father had been convicted of a felony and would be incarcerated for a length of time that would deprive the Children of a normal home for a period of years. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(4).⁵ The court also found severance was in the Children's best interests and entered an order terminating Father's parental rights. Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1) and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

I. DCS Proved Severance Was Warranted by Clear and Convincing Evidence.

¶8 A parent's rights may be terminated if the juvenile court finds by clear and convincing evidence "[t]hat the parent is deprived of civil liberties due to the conviction of a felony . . . 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); Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz.Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). Father argues DCS failed to prove severance was warranted. We will affirm a termination order "unless there is no reasonable evidence to support" the court's factual findings. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998) (citing Maricopa Cnty. Juv. Action No. JS-4374, 137 Ariz. 19, 21 (App. 1983), and Maricopa Cnty. Juv. Action No. JS-378, 21 Ariz. App. 202, 204 (1974)).

¶9 Father correctly notes there is no bright line rule as to when a sentence is sufficiently long to deprive a child of a normal home for a period of years. See Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 14 (App. 2014) (quoting Michael J., 196 Ariz. at 251, ¶ 29). A "normal home" is one in which a parent has a presence. Maricopa Cnty. Juv. Action No. JS-5609, 149 Ariz. 573, 575 (App. 1986).

¶10 To determine whether the statutory ground is met, the juvenile court should consider all relevant factors, including:

(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., 196 Ariz. at 251-52, ¶ 29. No one factor is determinative, and "there is no threshold level . . . that either compels, or forbids, severance." Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 450, ¶ 15 (App. 2007). Rather, "[i]t is an individualized, fact-specific inquiry." Id. (citing Michael J., 196 Ariz. at 251, ¶ 29).

¶11 The juvenile court made specific findings regarding the Michael J. factors, noting the Children were very young when Father was incarcerated — the oldest four years of age and the youngest only an infant — and that the Children had no relationship with either parent. The court noted Father was sentenced to three and a half years in June 2014 following his conviction for theft of means of transportation, and found, with creditfor presentence incarceration and earned release,⁶ would be eligible for release in May 2017. The court further found "Father's past, present and continuing incarceration has made the existence of a parent-child relationship impossible," noted Mother's parental rights had already been terminated, and concluded, "[i]n this vacuum," that the Children's placements had supplanted the parents and met the Children's needs.

¶12 Father does not challenge the juvenile court's findings. Instead, Father argues the order should be vacated because the facts are analogous to those presented in Rocky J. In Rocky J., this Court affirmed an order declining to sever a father's parental rights where he would be released seven months after the severance trial and there was evidence that father's incarceration "was not the sole cause of the lack of a relationship" with the child. 234 Ariz. at 441-42, ¶¶ 15, 18, 23. Father likewise contends, here, that he could be released in August 2016 — nine months after the severance trial — that DCS interfered with his efforts to maintain a relationship with the Children by withholding his cards and letters from them and declining his requests for visitation in prison, and that the Children were young enough that he would have many years to parent after being released from...