Opinion
No. 1 CA-JV 17-0423
02-22-2018
MEGAN R., WILLIS T., Appellants, v. DEPARTMENT OF CHILD SAFETY, M.T., Appellees.
COUNSEL Czop Law Firm PLLC, Higley By Steven Czop Counsel for Appellant Megan R. John L. Popilek PC, Scottsdale By John L. Popilek Counsel for Appellant Willis T. Arizona Attorney General's Office, Phoenix By Sandra L. Nahigian Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD529700
The Honorable Karen L. O'Connor, Judge
AFFIRMED
COUNSEL Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant Megan R. John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant Willis T. Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell joined. McMURDIE, Judge:
¶1 Megan R. ("Mother") and Willis T. ("Father") (collectively "Parents") challenge the superior court's order terminating their parental rights to M.T., born April 2014. Because Parents have shown no error, we affirm the order.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Department of Child Safety ("DCS") received a report that Parents were homeless, abusing drugs, and leaving M.T. in the care of inappropriate caregivers for days or weeks at a time. DCS took temporary custody of M.T. on February 1, 2016, and placed her in a maternal uncle's home.
¶3 In the following days, Parents failed to submit to drug testing or attend a team decision-making meeting. In February 2016, DCS filed a dependency petition alleging neglect and substance abuse. Later that month, Father was taken into custody, where he remained for most of the dependency action. Before Mother left Arizona in late 2016, DCS offered her services but she failed to actively and consistently take advantage of the services. Mother was arrested in New Mexico, and, in early 2017, detained again in Arizona on new criminal charges. Mother remained incarcerated through the pendency of the case.
The superior court found M.T. dependent as to Mother in April 2016 and Father in May 2016.
Father was released for approximately one month in the summer of 2016.
¶4 In January 2017, the superior court changed the case plan to severance and adoption, and DCS moved to sever Parents' rights to M.T., alleging out of home placement for a cumulative period of nine months or longer, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a), concerning Mother and length of felony sentence regarding Father, pursuant to A.R.S. § 8-533(B)(4).
DCS alleged other grounds for severance against Parents, but the superior court found DCS did not prove those grounds.
¶5 Following a contested hearing in August 2017, the superior court terminated Parents' parent-child relationship to M.T. Father and Mother each filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 8-235(A) and Arizona Rule of Procedure for the Juvenile Court 103(A).
Mother and Father appealed separately, but we consider both appeals together.
DISCUSSION
Because Parents do not challenge the best-interests' findings, we do not address that requirement. See State v. Carver, 160 Ariz. 167, 175 (1989) (claims not raised in an opening brief are, absent circumstances not present here, considered waived).
¶6 The superior court may sever a parent's rights if clear and convincing evidence establishes that at least one of the statutory grounds for termination exists and that a preponderance of the evidence shows terminating the parent's rights is in the child's best interests. Ariz. R.P. Juv. Ct. 66(C); Kent K. v. Bobby M., 210 Ariz. 279, 284, 288, ¶¶ 22, 41 (2005). We review the termination order and the record before us in the light most favorable to sustaining the court's ruling, affirming unless we conclude "'as a matter of law that no one could reasonably find the evidence [supporting statutory grounds for termination] to be clear and convincing.'" Denise R. v. ADES, 221 Ariz. 92, 95, ¶ 10 (App. 2009) (quoting Murillo v. Hernandez, 79 Ariz. 1, 9 (1955)). We will not disturb the order if there is reasonable evidence in the record that supports the factual findings upon which the order is based. Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the evidence on appeal; rather, we defer to the superior court with respect to any factual findings because, as the trier of fact, that court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). The superior court, not this court, assesses the credibility of witnesses before it and weighs the evidence presented. Id. And to the extent there are conflicts in the evidence, the superior court must resolve them. Jesus M., 203 Ariz. at 282, ¶ 12.
A. Sufficient Evidence Supports the Superior Court's Order Terminating Mother's Parental Rights Based on Nine Months' Time-in-Care.
¶7 Mother argues the superior court erred by finding she substantially neglected or willfully refused to remedy the circumstances that caused M.T. to be in an out-of-home placement because, before her incarceration, she did participate in services preceding the severance hearing.
¶8 Pursuant to A.R.S. § 8-533(B)(8)(a), the superior court may sever parental rights if "[t]he child has been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order . . . and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement." Severance on this ground is not appropriate when a parent has made "appreciable, good faith efforts to comply with remedial programs outlined by [DCS]," but it may be appropriate in cases where the parent "disappears for months at a time and makes only sporadic, aborted attempts to remedy" the circumstances. See Maricopa County. Juv. Action No. JS-501568, 177 Ariz. 571, 576 (App. 1994). At a minimum, A.R.S. § 8-533(B)(8)(a) requires the parent demonstrate "something more than trivial or de minimus efforts at remediation." Id. at 576, n.1.
¶9 DCS made diligent efforts to provide appropriate reunification services to Mother when she was not incarcerated by referring Mother for services, including drug testing, substance abuse counseling, and visitation. DCS also planned to submit referrals for psychological consultation, parent aide, and parenting classes once sobriety was established. The court found Mother was unable to remedy the circumstances that caused M.T. to come into care and noted, "Mother was not consistent in her participating with drug testing or treatment. Mother has not successfully completed any drug treatment program," and that, "[w]hile Mother had the opportunity to do so, Mother did not demonstrate that she can maintain sobriety in order to parent her child. Further, Mother did not demonstrate that she is able to provide for the child while out of custody."
Although DCS encouraged Mother to participate in any services offered by the Arizona Department of Corrections, per policy DCS did not offer her services through its own providers. --------
¶10 The evidence supports the superior court's finding that Mother "has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement by not fully participating in reunification services" offered by DCS pursuant to A.R.S. § 8-533(B)(8)(a). Therefore, we affirm the court's findings regarding this ground for severance of Mother's parental rights.
B. DCS Presented Sufficient Evidence that the Length of Father's Incarceration Warranted Severance of his Parental Rights.
¶11 Father was taken into custody at the beginning of the dependency and remained detained for most of the case. He is expected to be released in the summer of 2020. Father argues DCS failed to prove by clear and convincing evidence that the length of his prison sentence warranted the termination of his parental rights. The superior court found:
With the exception of sending one card to the child in April 2016, Father provided no support, cards, gifts or letters to the child during the pendency of the case. He is currently in prison not to be released until June 2020. Father has not participated in services due to incarceration. He has not demonstrated that he is able to maintain sobriety in order to parent the child. Further, he has not demonstrated he is able to appropriately parent the child or provide for the child's needs.
¶12 The statutory ground of length of sentence permits termination of the parent-child relationship if "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). However, no "bright line" definition exists as to when a sentence will be sufficient to meet this standard. Michael J. v. ADES, 196 Ariz. 246, 251-52, ¶ 29 (2000). The superior 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.Id. None of these factors, standing alone, is determinative. Christy C. v. ADES, 214 Ariz. 445, 450, ¶ 15 (App. 2007).
¶13 The record supports and the superior court's ruling satisfies the Michael J. factors. First, the record shows Father does not have a relationship with M.T. The superior court found Father had no contact with her during the pendency of the case, and prior to the dependency action, various caregivers cared for her.
¶14 Father argues DCS obstructed his ability to establish and maintain a parent-child relationship with M.T. by not facilitating visitation. Father, however, fails to establish that, as required by the second Michael J. factor, he had a preexisting relationship to "continue and nurture." On appeal, Father claims he did not know he was M.T.'s father until paternity was established in June 2017—more than a year after DCS filed the dependency petition. However, M.T. bears Father's last name and Father testified he "was in her life for two years before all this started," which contradicts that claim. Further, DCS did attempt to arrange video visitation, but was unsuccessful due to technological issues.
¶15 Father's incarceration will deprive M.T. of a normal home until approximately June 2020. Father disputes that M.T. will be deprived of a normal home, arguing that first placement and then Mother will be able to provide a home for M.T. However, Mother cannot provide M.T. a home for M.T. because the superior court terminated her parental rights in September 2017. As Father is essentially asking M.T. to wait in uncertainty for years, he has failed to establish how his proposal creates a normal home life for his child.
¶16 Regarding the fourth Michael J. factor, "the entire length of the sentence [is considered] and not whether the parent may be parole eligible within that time." James S. v. ADES, 193 Ariz. 351, 354, ¶ 12, n.3 (App. 1998). Father's anticipated release date of June 25, 2020, is undisputed. M.T. was nearly two-years-old when DCS took custody of her, and she will be six-years-old upon Father's release. More than two-thirds of M.T.'s young life will have passed since DCS took her into custody. M.T. deserves permanency with a family she knows and loves. Father cannot provide this for her.
¶17 Mother is also unavailable to provide a normal home life for M.T. as the superior court also terminated her parental rights. Finally, M.T.'s tender age and developmental stage in life require constant parenting, care, and supervision. She needs the type of bond already established with her maternal uncle's family. Father will not be able to provide any of the day-to-day necessities or nurturance that M.T. needs for continued proper development.
¶18 DCS is not obligated to provide reunification services to a parent who is serving an extended prison sentence. James H. v. ADES, 210 Ariz. 1, 2, ¶ 6 (App. 2005) (the 1998 amendment to the statute deleting that requirement "can be read as an affirmative legislative decision that reunification services are not required in the context of a subsection (B)(4) severance"). In James H., we first noted that, contrary to § 8-533(B)(8) and (11), § 8-533(B)(4) does not require DCS to provide reunification services. Id. Next, we acknowledged that "there may be a constitutional obligation on [DCS] to engage in reunification efforts," but "there is no constitutional mandate to undertake reunification efforts that are futile." Id. at ¶ 8 (citing Mary Ellen C. v. ADES, 193 Ariz. 185, 191-93, ¶¶ 32, 42 (App. 1999)). We went on to conclude that:
In this case of a lengthy prison sentence, however, we conclude that reunification efforts were not required because prolonged incarceration is something neither [DCS] nor the parent could ameliorate through reunification services. The damage to the parent-child relationship that justifies severance stems from the enforced physical separation of the parent from the child, and nothing [DCS] has to offer in the way of services can affect that reality. Nor could Appellant by participating in services remedy his inability to provide a normal home for the children for the period for which he will be incarcerated. As to this basis for severance, reunification services for Appellant would have clearly been futile.Id. at 3, ¶ 9; see also Christy C., 214 Ariz. at 451, ¶ 17 ("[I]ncarceration will as a practical matter typically preclude all but minimal visits."). Accordingly, we held DCS had no duty to provide reunification services before seeking termination of a parent's rights based upon length of sentence. James H., 210 Ariz. at 3, ¶ 10.
¶19 The basis for terminating Father's parental rights is the same as in James H.—length of sentence. Father complains DCS prevented him from visiting with M.T., but DCS does not typically offer services to incarcerated parents. In this case, however, the DCS case manager did attempt to facilitate video visitation but was unsuccessful due to technological issues. Further, as previously discussed, no relationship between Father and M.T. would be "maintained" by video visits, because M.T. last saw Father before DCS took her into temporary custody. Finally, although Father did send M.T. one card, he provided no other type of support.
¶20 As in James H., the physical separation between Father and M.T. due to Father's incarceration coupled with the lack of services available to Father while incarcerated means that providing Father with reunification services would be futile. Therefore, the superior court did not err by finding that Father's sentence is of such a length that M.T. will be deprived of a normal home for a period of years.
CONCLUSION
¶21 For the foregoing reasons, we affirm.