Timothy B. v. Dep't of Child Safety

65 Arizona Cases Digest 21

505 P.3d 263

TIMOTHY B., Appellant,

v.DEPARTMENT OF CHILD SAFETY, H.B., Appellees.

No. CV-20-0318-PR

Supreme Court of Arizona.

Filed March 7, 2022

David W. Bell, Law Office of David W. Bell, Mesa; Steven Czop (argued), Czop Law Firm, PLLC, Higley, Attorneys for Timothy B.

Mark Brnovich, Arizona Attorney General, Drew C. Ensign, Section Chief, Civil Appeals, Dawn R. Williams (argued), Autumn Spritzer, Assistant Attorneys General, Tucson, Attorneys for Department of Child Safety

VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which JUSTICES LOPEZ, BEENE, and KING joined. JUSTICE BOLICK concurred in the result.^*

VICE CHIEF JUSTICE TIMMER, opinion of the Court:

¶1 The juvenile court can terminate the parent-child relationship if at least one ground listed in A.R.S. § 8-533(B) exists, and termination is in the child's best interests. See Alma S. v. Dep't of Child Safety , 245 Ariz. 146, 149–50 ¶ 8, 425 P.3d 1089 (2018). The length-of-sentence ground for termination is proven if an incarcerated parent's sentence is so lengthy that "the child will be deprived of a normal home for a period of years." § 8-533(B)(4). What is a "normal home"? That is the primary question before us.

BACKGROUND

¶2 H.B. was born in September 2012 and initially lived with her father, Timothy B., her mother, Jaliece J., and her half-siblings. When H.B. was two-and-one-half years old, Timothy was convicted of several felony charges, including kidnapping, attempted sexual assault, unlawful flight from law enforcement, and aggravated assault. The superior court sentenced him to 12.5 years in prison and imposed lifetime probation upon his release, which will occur in 2024 when H.B. is eleven years old.

¶3 After Timothy was incarcerated, H.B. lived with her paternal grandmother and paternal aunt for the next few years. During that time, they facilitated extensive contact between Timothy and H.B. Timothy frequently spoke with his daughter by telephone, wrote to her often, and had regular in-person visits with her. Neither the grandmother nor the aunt established a legal responsibility to care for H.B. through a guardianship. See A.R.S. § 8-871(A) (authorizing permanent guardianships).

¶4 H.B. also spent time with Jaliece, who lived with H.B.’s half-siblings and another man. The Arizona Department of Child Safety ("DCS") became involved in January 2017 when Jaliece was arrested while H.B. was visiting. After an investigation revealed child neglect and other issues, DCS removed the children, including H.B., from Jaliece's custody.

¶5 The juvenile court found H.B. and her half-siblings dependent as to Jaliece and their respective fathers. H.B.’s paternal aunt asked that H.B. be placed with her, but that request was denied because the aunt lived with the paternal grandmother, who did not pass a background check. Instead, the court granted DCS's request that H.B. be placed with Jaliece's friend, who had known H.B. since birth. During H.B.’s lengthy dependency, she spoke with Timothy weekly and visited him monthly.

¶6 DCS was unable to successfully reunify Jaliece with her children after two years of providing services, and the court approved a change in case plan to severance and adoption. DCS sought to terminate Timothy's parental rights pursuant to the length-of-sentence ground listed in § 8-533(B)(4). After a multiple-day evidentiary hearing held over a few months in 2019, the court found that DCS had proved this ground and that termination was in H.B.’s best interests.¹ It therefore terminated Timothy's parental rights to H.B.

¶7 In considering the length-of-sentence ground, the court relied on In re Appeal in Maricopa County Juvenile Action No. JS-5609 , 149 Ariz. 573, 575, 720 P.2d 548, 550 (App. 1986), which found that "[t]he ‘normal home’ referred to in the statute relates to [an incarcerated parent's] obligation to provide a normal home, a home in which the [incarcerated parent] has a presence, and it does not refer to a ‘normal home’ environment created by [others]." The court also considered non-exclusive factors set forth in Michael J. v. Arizona Department of Economic Security , 196 Ariz. 246, 251–52 ¶ 29, 995 P.2d 682, 687-88 (2000) :

(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.

In applying these factors, the court found that on the one hand, Timothy and H.B. enjoy a "fairly strong relationship" and that "[Timothy] has done all he can to maintain and nurture his relationship with [H.B.]." The court remarked on their "strong bond"; "frequent telephone contact"; regular visits, which included helping H.B. with homework; and exchanges of cards, gifts, letters, poetry, and drawings. According to the court, Timothy clearly loves his daughter, is "kind and attentive," and both H.B. and Timothy enjoy visitation.

¶8 On the other hand, the court found that Timothy's love and care is insufficient to meet H.B.’s needs. The court observed that "[H.B.] has no parent available to walk her to school, to teach her how to ride a bicycle, go to school functions, and help with homework on a regular basis" and that Timothy "has been and remains unavailable for [H.B.’s] daily care and for milestone events." It also found that the nature of Timothy's convictions made it unlikely he would be able to parent immediately following release from custody, and that he could be reincarcerated if he violates probation.

¶9 The court concluded that while Timothy's efforts have been "extraordinary and laudable," his incarceration has and will continue to deprive H.B. "of her father's everyday guidance, care and support" for over half her childhood, meaning she is deprived of a normal home for a period of years, thereby demonstrating the length-of-sentence ground for termination under § 8-533(B)(4).

¶10 Turning to H.B.’s best interests, the court focused "solely" on her interests under "the totality of the circumstances." It found that H.B. is happy in an adoptive placement with a younger half-sister, and the placement meets all her needs; the placement will ensure that H.B. regularly visits her other half-siblings; and absent termination, H.B. would "languish further awaiting for [her] father to be released from custody with a hope that [he] may be ready to safely parent [her]."

¶11 The court of appeals vacated the juvenile court's termination order as it relates to Timothy and remanded for reconsideration, citing two errors. See Timothy B. v. Dep't of Child Safety , 250 Ariz. 139, 141 ¶ 1, 476 P.3d 319, 321 (App. 2020). First, it concluded the juvenile court mistakenly relied on the definition of "normal home" announced in JS-5609 , characterizing that definition as overly rigid by failing to recognize "that a ‘normal home’ may include a parent with a non-traditional presence." See Timothy B. , 250 Ariz. at 144 ¶ 18, 476 P.3d at 324. Second, it found that the juvenile court had erred by using a best-interests inquiry focusing "solely on the children's best interest" rather than "balanc[ing] the interests of both the child and the parent." Id. at 145–46 ¶ 21, 476 P.3d at 325-26.

¶12 We granted DCS's petition for review to provide guidance on what constitutes a "normal home" under § 8-533(B)(4) and to clarify the best-interests inquiry, both recurring issues of statewide importance.

DISCUSSION

I.

¶13 The juvenile court conducts a two-step inquiry in determining whether to terminate the parent-child relationship. See Alma S. , 245 Ariz. at 149–50 ¶ 8, 425 P.3d at 1092-93. First, the court must decide whether clear and convincing evidence demonstrates at least one ground listed in § 8-533(B). Id. at 149 ¶ 8, 425 P.3d at 1092. The grounds listed establish parental unfitness by showing a parent's inability to properly parent, a voluntary relinquishment of parental rights, or actions that forfeit a parent's right to contest severance. Id. at 150 ¶¶ 9–10, 425 P.3d at 1093. Second, assuming a § 8-533(B) ground exists, the court must decide whether a preponderance of evidence supports a finding that termination is in the child's best interests. Id. at 149–50 ¶ 8, 425 P.3d at 1092-93.

¶14 We will affirm a termination order unless the juvenile court abuses its discretion or the court's findings are not supported by reasonable evidence. Jessie D. v. Dep't of Child Safety , 251 Ariz. 574, 579 ¶ 10, 495 P.3d 914, 919 (2021). A court abuses its discretion by misapplying the law. State v. Miles , 243 Ariz. 511, 513 ¶ 7, 414 P.3d 680, 682 (2018).

A.

¶15 The length-of-sentence ground for termination provides, in relevant part, that termination is justified when "the parent is deprived of civil liberties due to the conviction of a felony ... [and] the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years." § 8-533(B)(4). DCS argues the court of appeals misinterpreted "normal home" as possibly including a home where the incarcerated parent has a non-traditional presence. It asserts the court conflated the Michael J. factors and "improperly magnifie[d] the importance of the child's need to maintain a relationship with his or her incarcerated parent while ignoring the importance of the child's other needs" that an in-home parent typically addresses.

¶16 We review the meaning of § 8-533(B) de novo. See Rasor v. Nw. Hosp., LLC , 243 Ariz. 160, 163 ¶ 11, 403 P.3d 572, 575 (2017). Our primary goal is effectuating the legislature's intent. Id. at 164 ¶ 20, 403 P.3d at 576. If the statutory language has only one reasonable...