Opinion
2 CA-JV 2022-0016
06-29-2022
Anthony O., Appellant, v. Nora R., D.O., and F.O., Appellees.
The Huff Law Firm PLLC, Tucson By Daniel R. Huff Counsel for Appellant Jacqueline Rohr, Tucson Counsel for Appellee Nora R. Pima County Office of Children's Counsel, Tucson By Christopher Lloyd Counsel for Appellee Minors
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. S20200031 The Honorable Kathleen Quigley, Judge
The Huff Law Firm PLLC, Tucson By Daniel R. Huff Counsel for Appellant
Jacqueline Rohr, Tucson Counsel for Appellee Nora R.
Pima County Office of Children's Counsel, Tucson By Christopher Lloyd Counsel for Appellee Minors
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Espinosa concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge
¶1 Appellant Anthony O. challenges the juvenile court's order of February 10, 2022, terminating his parental rights to his children, D.O., and F.O., both born May 2013, on the ground that Anthony's incarceration was "of such length that the child[ren] will be deprived of a normal home for a period of years." See A.R.S. § 8-533(B)(4). On appeal, Anthony argues "[t]he juvenile court misapplied the law" in determining the children's mother, Nora R., had proven the statutory ground. Finding no error, we affirm.
¶2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the children. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find those essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the evidence in the light most favorable to upholding the court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008). "However, 'we review de novo legal issues requiring the interpretation and application of § 8-533.'" Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, ¶ 10 (2021) (quoting Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, ¶ 12 (App. 2014).
¶3 D.O. and F.O. were born in May 2013, at which time Anthony was on intensive probation following a robbery conviction. In July 2013, he violated the terms of his probation and was incarcerated for approximately four months. Nora brought the children for visits during that time, but Anthony did not send cards or letters. After his release, Anthony and Nora lived together, but separated in April 2014. The two co-parented briefly, but Anthony was arrested in May 2014 after robbing a convenience store and was subsequently convicted of armed robbery and kidnapping. He was also convicted of burglary for stealing a change machine from a convenience store. He was sentenced to concurrent prison terms, the longest of which were 9.25 years.
¶4 For the first few months of Anthony's incarceration, Nora paid his stepmother to babysit and care for the children, during which time Anthony had some video contact with them. In June 2014, Nora met and began dating another man, Jobb, and, after an argument about the children calling Jobb "Dad" in 2015, Nora ended the childcare arrangement. Anthony's parents reached out on holidays and the children's birthday, but Nora moved in 2016 and changed her phone number in approximately 2017. Nora testified that when she initially had moved, she asked for forwarding through the United States Postal Service, and she believed Anthony would get the new address as a result. She acknowledged she had not wanted the children to have contact with Anthony and had not provided her new phone number to Anthony or his family. But she explained that she had not changed the number to evade them-she had only changed service providers. Nora also blocked Anthony's family members on social media in 2016. Nora testified, however, that his family could have reached out to hers through social media and her family would have alerted her.
¶5 While he was incarcerated, Anthony wrote Nora five to ten times, asking briefly how the children were doing and telling her to tell them he loved them. After she moved, however, letters were returned to him. At the hearing, Anthony acknowledged he had not made efforts to reach Nora, stating that despite Nora's initiating a paternity action in July 2015, he had not known how to respond and that he had not asked his family for help.
¶6 In 2019, after receiving a message from Anthony's family on her mother's social media account, Nora called Anthony's father. His parents had a few visits with the children, but despite knowing his parents were able to reach Nora, Anthony did not reach out. Contact between Nora and his parents stopped again as well. Nora filed a petition for termination of Anthony's parental rights in February 2020. After the petition was filed, Nora received a letter from Anthony, saying he would resist severance. Nora and Jobb married in February 2021, and Jobb, who has lived with and cared for the children since late 2014, wishes to adopt the children. After a multi-day severance hearing on an amended petition filed in August 2020, the juvenile court granted Nora's petition for termination.
Anthony has since been released from incarceration and is on community supervision status.
¶7 On appeal, Anthony argues the juvenile court erred in granting the motion for termination because it "misapplied" the § 8-533(B)(4) factors under Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246 (2000), in light of Timothy B. v. Department of Child Safety, 252 Ariz. 470 (2022). To terminate Anthony's rights based on his incarceration under § 8-533(B)(4), Nora was required to demonstrate the resulting sentence "is of such length that the child[ren] will be deprived of a normal home for a period of years." Our supreme court has not adopted a "'bright line' definition of when a sentence is sufficiently long to deprive a child of a normal home for a period of years." Michael J., 196 Ariz. 246, ¶ 29. Instead, the court directed that juvenile courts
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.Id. It is not necessary for all factors to support terminating parental rights, nor is there any "threshold level under each individual factor . . . that either compels, or forbids, severance." Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 15 (App. 2007).
¶8 As Anthony points out, our supreme court revisited the standard for termination pursuant to § 8-533(B)(4), in Timothy B., 252 Ariz. 470. In so doing, it "disapprove[d] the . . . definition" of "normal home" set forth in In re Maricopa County Juvenile Action No. JS-5609 , 149 Ariz. 573 (App. 1986), insofar as the JS-5609 court had "require[d] the incarcerated parent's physical presence." Timothy B., 252 Ariz. 470, ¶¶ 24, 27. The juvenile court in this case cited JS-5609 for the proposition that Anthony's "obligation" to provide a normal home was "not satisfied by the stable home environment established" by Nora and Jobb. We agree with Anthony that this reliance was in error.
Anthony and Nora disagree as to the application of Timothy B. in this matter, given that our supreme court's decision was issued after the juvenile court's ruling, while our decision in that case was issued before the court's ruling. Neither cites authority to support their position. "Unless otherwise specified, Arizona appellate opinions in civil cases operate both retroactively and prospectively." Martin v. Staheli, 248 Ariz. 87, ¶ 26 (App. 2019) (quoting Cundiff v. State Farm Mut. Auto. Ins. Co., 217 Ariz. 358, ¶ 18 (2008)). And, "[a] severance proceeding . . . is clearly civil in nature." Denise H. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 257, ¶ 6 (App. 1998). Our supreme court's decision, which did not specify that it was limited to prospective application, therefore applies to this matter.
¶9 We cannot conclude, however, as Anthony contends, that the juvenile court's ruling must therefore be reversed. On the record before us, as detailed above, there was little dispute that the children were in a stable home with their mother, so the court did not focus on a lack of daily care. Instead, the court's focus was primarily on Anthony's lack of effort to maintain contact with the children. Unlike the juvenile court in Timothy B., which determined Timothy had not provided a "normal home" based on his "inability to be physically present" or to provide day-to-day care, 252 Ariz. 470, ¶ 28, the court here simply found that Anthony had no relationship with the children, even within the parameters available during his imprisonment. It concluded that Anthony "did not make efforts when he had the opportunity during his incarceration to connect with them. As such, the children were deprived of that opportunity to have a normal home life" involving Anthony.
¶10 In contrast, Timothy B. had "a 'fairly strong relationship'" with his child, based on his having "done all he c[ould] to maintain and nurture his relationship" with his child. Id. ¶ 7. Our supreme court concluded that under such circumstances, an incarcerated parent could still be said to provide a normal home when the children were in a stable, non-foster-care placement and the parent "affirmatively acts to maintain a relationship with the child that contributes to rather than detracts from the child's stable, family environment." Id. ¶ 27.
¶11 As detailed above, the record supports the juvenile court's conclusion that Anthony had not done what he could in the context of his incarceration to provide a "normal home." After the children's birth in May 2013, Anthony was incarcerated for several months. He was incarcerated again in May 2014, and sentenced to 9.25 years' imprisonment. During the first few years of his imprisonment, he had limited contact with the children, including phone and video visits and sending Nora five to ten letters in which he briefly asked about them. But after Nora moved in 2016 and his letters were returned, he took virtually no action to locate her or to maintain contact with the children. After that time, he had no contact with the children at all until he wrote a letter to Nora in 2021 responding to the current severance action.
¶12 Indeed, the record supports the juvenile court's analysis of the Michael J. factors, which our supreme court again directed juvenile courts to consider in determining whether the § 8-533(B)(4) ground has been established. See Timothy B., 252 Ariz. 470, ¶ 27. The majority of Anthony's argument urges this court to reweigh the juvenile court's evaluation of the Michael J. factors and the evidence presented, which we will not do. See Jessie D., 251 Ariz. 574, ¶¶ 10, 23. The court's error in citing JS-5609 was harmless because, as our supreme court directed in Timothy B., it "consider[ed] whether the incarcerated parent could contribute to rather than detract from the stable, family environment." 252 Ariz. 470, ¶ 27. It relied little on JS-5609 in its analysis of the Michael J. factors and its citation to that case did not undermine "the propriety of the court's decision to sever [Anthony]'s parental rights given the totality of the record." Jessie D., 251 Ariz. 574, ¶ 24.
¶13 We also reject Anthony's argument that termination of his parental rights was not warranted because Nora "had the sole power to facilitate contact" with the children, and "thwarted [his] efforts to remain in contact with" them. In support of his argument, he relies on Calvin B. v. Brittany B., in which this court held "that a parent who has persistently and substantially restricted the other parent's interaction with their child may not prove abandonment based on evidence that the other has had only limited involvement with the child." 232 Ariz. 292, ¶ 1 (App. 2013). In that case, the father of the child, who was alleged to have abandoned him, was found to have "consistently 'done something' to assert his right to have contact with his son." Id. ¶ 29. And the mother in that case actively limited the time the father could spend with the child during his visitation and ultimately ended the visits, blocked his phone calls, obtained an order of protection, and called law enforcement and had him arrested for violating the order. Id. ¶¶ 6-8.
¶14 The situation here is distinguishable. Even crediting the facts on which Anthony relies-that Nora had moved and changed her phone number without informing him, blocked his family members on social media, and did not want the children to have contact with Anthony after 2016-the record does not establish Nora interfered in a manner similar to the interference in the "unusual" case of Calvin B. Id. ¶ 21. Nora did not seek orders of protection against Anthony or affirmatively reject any efforts by him to have contact with the children. See id. ¶¶ 3, 7-9. Although Nora did not provide updated contact information to Anthony upon moving or changing phone carriers, nothing in the record supports an allegation that she undertook those action to evade him. Indeed, upon receiving a message from Anthony's parents, she reached out to them. Importantly, as detailed above, Anthony took virtually no action to maintain contact with the children during his incarceration-notably failing to respond to the paternity action in 2015 or to reach out to the children after his parents reconnected with them in 2019. And, as the juvenile court emphasized, this was so even after he knew his parents had regained contact with them in 2019. Thus, reasonable evidence supports the juvenile court's findings, and we cannot say it abused its discretion in determining that Nora had established the ground for severance. See Jessie D., 251 Ariz. 574, ¶ 10.
¶15 Based on the foregoing reasons, we affirm the juvenile court's order terminating Anthony's parental rights.