Opinion
1 CA-JV 11-0089
11-29-2011
CASANDRA B., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, CHARLES F., Appellees.
John L. Popilek, PC by John L. Popilek, Attorneys for Appellant Scottsdale Thomas C. Horne, Arizona Attorney General by David M. Osterfeld, Assistant Attorney General Attorneys for Appellee Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -Ariz. R.P. Juv. Ct. 103(G); ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JD18937
The Honorable Christopher A. Coury, Judge
AFFIRMED
John L. Popilek, PC
by John L. Popilek,
Attorneys for Appellant
Scottsdale
Thomas C. Horne, Arizona Attorney General
by David M. Osterfeld, Assistant Attorney General
Attorneys for Appellee
Phoenix
BARKER, Judge
¶1 In this case, we consider whether the trial court properly terminated the parental rights of Casandra B. ("Mother") with regard to her child, Charles F. ("Charles"), based on the term of her imprisonment. For the following reasons, we affirm.
Facts and Procedural Background
¶2 Mother was eighteen years old when she became pregnant with Charles F. Mother explained that Charles's father ("Father") engaged in a "lot of mental abuse" and a "lot of physical abuse" that "didn't get bad until probably a few months after [her] child was born." Charles was born in December 2007. Mother moved into a domestic violence shelter with Charles after her first physical fight with Father.
¶3 In June 2009, Mother had another child, a daughter, who was given up for adoption. Mother admitted that this daughter had been born substance-exposed to methamphetamine because Mother had been using this substance at the time. Mother admitted to having "a history with methamphetamine and drugs." She also stated that she had used mushrooms and marijuana.
¶4 A few months after giving birth to the daughter, Mother attempted to forge a check on August 24, 2009. Mother was arrested in November of 2009. At this time, Charles was nearly two years old. Mother pled guilty to forgery, a class 4 felony, on January 8, 2010. Three months later, Mother also pled guilty to possession of burglary tools, a class 6 felony, and to attempted theft, a class 3 felony. Mother was sentenced to two-and-a-half years for attempted theft, to be served concurrently with her three-and-a-half year sentence for forgery. She was also sentenced to one year of probation for possession of burglary tools. Her projected early release date from prison is August 13, 2012. Her flat sentence maximum release date is April 29, 2013.
¶5 After removing Charles from Mother's mother's ("Grandmother's") care, the Arizona Department of Economic Security ("ADES") filed a motion to terminate Mother's parental rights on the ground that the length of her felony sentence would deprive Charles of a stable home for a period of years under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(4) (2011).
¶6 At the severance hearing, Mother testified that she wanted Charles F. to live with Grandmother, who Mother testified had previously used drugs for a period of years and been convicted of a DUI. Mother also acknowledged that Grandmother had a prior Child Protective Services ("CPS") action involving Mother's brother, Aaron B., who had aged out of the system. Mother also acknowledged that Grandmother's "significant other" (who would also live with Charles F. if Mother's proposed plan were accepted) had been previously convicted of possessing drug paraphernalia and trespassing.
During the prior CPS action, Aaron B. stated that he had seen Grandmother do drugs, although Grandmother later denied this. Great-Grandmother also apparently had made allegations that Grandmother used drugs at the time of the prior CPS action. Father testified that he did not want Charles F. to live with Grandmother because Mother had told him that she had used drugs with Grandmother. Mother's CPS caseworker testified that in Grandmother's CPS case, the allegation had been that Grandmother was a chronic methamphetamine user.
¶7 Mother stated that Charles' Father would not be a suitable person to care for Charles based on Father's mental instability. She explained that Father had used both methamphetamine and marijuana. The psychologist engaged to evaluate Father by CPS testified that Father told him he had gone to prison for five and a half years for manufacturing methamphetamine and that he had a twelve-year history of using methamphetamine. The psychologist also diagnosed Father as having a personality disorder that included both antisocial and paranoid traits. He recommended that CPS "pursue alternative plans for the child [rather] than return to him."
¶8 While imprisoned, Mother completed narcotics anonymous, crystal meth anonymous, culture diversity classes and domestic violence classes. She also was enrolled in a twenty-week parenting class as of April 20, 2011. During her incarceration, Mother sent Charles cards, gifts, and letters. She also registered him for Angel Tree, a program that provides Christmas presents for the children of incarcerated parents. She asked for visitation with Charles while in prison. And, during the time that she was in jail, prior to her prison term beginning, Mother testified she called Charles twice per day. Mother testified that prison regulations permitted her to visit with Charles for eight hours on Saturday and four hours on Sunday. In terms of actual visitation that took place, Mother asserts in her brief that it occurred weekly. The record, however, indicates that there were monthly prison visits. Moreover, the length of each visit is not documented. The record also shows that Mother's family, at the time of the hearing on severance, was willing to arrange for weekly visitation in the future.
¶9 At the severance hearing, the case manager testified that if the case remained open until Mother got out of prison in 2012 or 2013, she would still have to complete reunification services, such as urinalysis testing, parent-aide services, counseling services, domestic violence and anger management classes and a psychological consultation with any resulting recommendations. She also testified that these services would need to continue for a year and Mother would need to show that she had stable housing and employment before Charles could possibly be returned to her care.
¶10 On April 25, 2011, the court found by "clear and convincing evidence that Mother was deprived of her civil liberties due to the conviction of a felony" and that her "sentence is of such a length that [Charles] will be deprived of a normal home for a period of years" under A.R.S. § 8-533(B)(4). The court also found by a preponderance of evidence that severance of Mother's parental rights would serve Charles's best interests because he was adoptable and was in an adoptive placement where all his needs were met. The court explained that this would allow him to avoid the detriments associated with continued uncertainty as to whether Mother would ever be able to be a minimally adequate parent.
¶11 Mother timely appeals. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007), 12-120.21 (2003), and 12-2101(B) (2003). For the reasons stated below, we affirm.
Discussion
¶12 The sole issue on appeal is whether reasonable evidence supports the juvenile court's finding that Mother's sentence was of such length that Charles would be deprived of a normal home for a period of years under A.R.S. § 8-533(B)(4). Mother does not contend on appeal that the court erred by finding severance was in the child's best interests.
¶13 On appeal, we do not reweigh the evidence nor make credibility determinations; instead, we examine the record merely to determine whether there is sufficient evidence of the grounds for termination. Jesus M. v. Ariz. Dep't. of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) ("The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings."); Audra T. v. Ariz. Dep't. of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (explaining that this court "will not disturb the juvenile court's order severing parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them").
¶14 To demonstrate that termination of the parent-child relationship is justified, ADES must prove by clear and convincing evidence that at least one of the grounds for severance set forth in A.R.S. § 8-533 exists and that termination is in the best interests of the child. Here, the focus is on § 8-533(B)(4), which provides that grounds for termination include that "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). This section "sets out no 'bright line' definition of when a sentence is sufficiently long to deprive a child of a normal home for a period of years"; "[i]n some instances, a 20-year sentence might not provide sufficient basis for severing an incarcerated parent's rights, while in another case a 3-year sentence could provide the needed basis." Michael J. v. Ariz. Dept. of Econ. Sec., 196 Ariz. 246, 251, ¶ 29, 995 P.2d 685, 687 (2000).
¶15 Mother argues that the trial court abused its discretion because she only had sixteen months left to serve at the time of severance and the other Michael J. factors were not met. However, it is not the remaining term of a sentence, but rather the entire sentence that the court must consider when determining whether Charles "will be deprived of a normal home for a period of years." A.R.S. § 8-533(B)(4). The statute's terms plainly refer the court to "the sentence of [the] parent" rather than the amount of time remaining to be served. Id. ; See Jesus M. , 203 Ariz. at 281, ¶ 8, 53 P.3d at 206 ("[T]he legislature used the words 'will be deprived' in § 8-533(B)(4) to mean 'will have been deprived' in total, intending to encompass the entire period of the parent's incarceration and absence from the home."); James S. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 351, 354 n.3, ¶ 12, 972 P.2d 684, 687 n.3 (App. 1998) ("Under A.R.S. section 8-533(B)(4), the court must consider the entire length of the sentence and not whether the parent may be parole eligible within that time."). Moreover, here the trial court used Mother's earliest possible release date when analyzing the Michael J. factors: "In reality," the "Child would be at least 5 1/2 years old and likely in Kindergarten" before being returned to Mother's care, using the "earliest release date."
¶16 Mother argues that cases relying on the length of the parent's sentence as a basis for termination "typically have involved long sentences and severe circumstances" such as a life term for second degree murder (citing Pima County Juvenile Action No. S-1147, 135 Ariz. 184, 185, 659 P.2d 1329, 1330 (App. 1983)) or a twenty-five year sentence for the rape and sodomy of a daughter (citing Maricopa County Juvenile Action No. JS-7499, 163 Ariz. 153, 155, 786 P.2d 1004, 1006 (App. 1989)). In contrast, Mother was sentenced to only three and a half years and "had only sixteen (16) months remaining to be served on that term at the time of severance[,]" although she would then be required to serve an additional year of probation before being allowed to regain custody of Charles.
¶17 While Mother's sentence of three and a half years is certainly not as long as either of the two cases that she cites, she fails to direct the court to any decision finding that three and a half years is an insufficient basis for supporting termination. It is doubtful that any such case exists, given that our supreme court explicitly noted that "a 3-year sentence
could provide the needed basis" for severance. Michael J. , 196 Ariz. at 251, ¶ 29, 995 P.2d at 687 (emphasis added).
¶18 Indeed, the support Mother offers for her argument indirectly confirms the dearth of any such case so holding. Mother cites a single sentence from a dissent in a case that is over fifteen years old: "No prior Arizona case comes close to holding that parental rights can be severed because of a 5.25-year sentence . . . ." In re Juv. Action No. JS-9104, 183 Ariz. 455, 462, 904 P.2d 1279, 1286 (App. 1995) (Noyes, J., dissenting), abrogated on other grounds by Kent K. v. Bobby M., 210 Ariz. 279, 282-84, ¶¶ 12, 22, 110 P.3d 1013, 1016-18 (2005). However, not only is this statement in the dissent (and as such, not binding), but the fact that the case comes out the other way also confirms that the majority in JS-9104 considered and rejected this argument. Thus, JS-9104 is an example of at least one case where parental rights were severed because of a 5.25-year sentence. Moreover, when the ellipses are completed, it becomes clear that the father in JS-9104 had a much more compelling argument against severance than Mother does here: "No prior Arizona case comes close to holding that parental rights can be severed because of a 5.25-year sentence when the parent will be out of prison within 1.5 years of the hearing and when, prior to going to prison, the parent had a seven-year relationship with the child and was the child's residential parent." Id. Here, in contrast, the length of Mother's relationship with Charles was much shorter than the term of her incarceration.
¶19 Mother also contends that the other Michael J. factors were not met. The factors that a court must consider when determining whether severance based on the parent's term of incarceration is justified include:
(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, 995 P.2d at 687-88. Here, the juvenile court's eleven-page single-spaced minute entry reveals that it considered each of the Michael J. factors and that its findings were supported by the record. We discuss each factor in turn.
(1) Length and Strength of the Parent-Child Relationship Existing When Incarceration Began
¶20 As to the first factor, the court found that Charles was twenty-two months old and "bonded with Mother" at the time of her incarceration. However, the court noted that he had "behavior issues" and had "developed a vulgar and inappropriate vocabulary." The court also found that Mother had "left the Child with Grandmother for periods of time." These findings were supported both by Mother's testimony and the testimony of a CPS caseworker.
(2) Degree to Which the Parent-Child Relationship Can Be Continued and Nurtured During Incarceration
¶21 The trial court found that "[w]hile Mother is incarcerated, the parent-child relationship can only be continued and nurtured during visitation periods with Mother." It noted that "[p]resently, Mother is allowed visitors for 8 hours on Saturdays and 4 hours on Sundays." Thus, the trial court found that the parent-child relationship could only be nurtured for a maximum of twelve hours per week during Mother's incarceration. Mother's testimony confirmed this was true. The inferences from the record suggest that such weekly visits could have taken place prior to the time of the severance hearing, but did not. In addition, the CPS caseworker testified that Charles "tantrumed a couple of times" during these visits and seemed "upset" and "inconsolable for a time" during one of the visits, suggesting that it would be difficult for Mother to establish or continue a normal parent-child relationship with Charles, given his age and needs. The case worker also testified that Charles "cried himself to sleep en route to the foster home" on two occasions when leaving Mother at the prison.
(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
¶22 The trial court found that "[i]f Mother is released in August 2012, the Child will be 4 1/2 years old" and "[e]ven using the earliest release date, Mother will have been continuously incarcerated for over half of the Child's life, and for a period of substantial development of the Child." The court further noted that it was undisputed that Mother would not gain custody of the Child immediately upon her release. Instead, given that Mother had admitted to a history of using illegal drugs, ADES would not contemplate returning the Child to Mother's custody until Mother participated in services for over one year following her release to ensure her sobriety. Thus, "[i]n reality," "Child would be at least 5 1/2 years old and likely in Kindergarten" before being returned to Mother's care, using the "earliest release date." The court's analysis is supported by Mother's testimony, the testimony of a CPS case worker, and Mother's inmate report from the Arizona Department of Corrections.
(4) The Length of the Sentence
¶23 The court found that "Mother is serving a 3.5 year term in the Arizona Department of Corrections, with credit for 102 days." It explained that her "supervised release date is 8/13/2012[,]" her "supervision end date is 11/30/2012[,]" and that her "'flat sentence maximum' date is 4/29/2013." These findings are supported by exhibits and testimony taken during the hearing, in addition to Mother's inmate report and the sentencing minute entry associated with her charges.
(5) The Availability of Another Parent to Provide a Normal Home Life
¶24 The trial court noted that a clinical psychologist had evaluated Father and opined that "Father's prognosis to serve as a minimally adequate parent is 'poor.'" The court also explained that the psychologist's report stated that "[t]here would be risk of neglect related to his unstable lifestyle and the intrusion of his mental health symptoms into his life" if the Child were placed into Father's care, as well as a "risk of emotional abuse and possibly physical abuse to a child given his violent nature and exposing the child to violent interactions with others." Given that Father was not a stable or suitable parent, the court explained that "Mother's incarceration has deprived, and will continue to deprive, the Child of a normal home and stability during years of profound development." These findings were supported by Mother's and Father's testimony, the testimony of the psychologist who evaluated Father, and the psychologist's report. Mother specifically admitted while testifying that she would not be able to provide a normal home to her son while she was incarcerated. Moreover, given that Father's parental rights have been severed, he is not available to parent Charles during Mother's incarceration.
(6) The Effect of the Deprivation of a Parental Presence on the Child at Issue
¶25 As to the final factor, the court explained that "Mother's incarceration has the effect of depriving the Child of a parental presence during much of his life and all of his preschool years." All of the factors and evidence previously discussed, provide support for this statement.
¶26 As the foregoing demonstrates, the juvenile court made findings as to every Michael J. factor, and each finding was amply supported by the record.
Conclusion
¶27 Finding sufficient evidence to support the termination of Mother's parental rights, we affirm.
DANIEL A. BARKER, Judge
CONCURRING:
ANN A. SCOTT TIMMER, Presiding Judge
PATRICK IRVINE, Judge