Opinion
No. 1 CA-JV 14-0047
07-24-2014
DEPARTMENT OF CHILD SAFETY, Appellant, v. ANTHONY S., A.M., Appellees.
Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellant Denise L. Carroll, Scottsdale Counsel for Appellee Anthony S.
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD20016
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellant
Denise L. Carroll, Scottsdale
Counsel for Appellee Anthony S.
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Randall M. Howe joined. KESSLER, Judge:
¶1 The Department of Child Safety ("DCS") appeals the denial of legal severance of A.M. DCS argues that the juvenile court erred in applying factors three and six under the Michael J. analysis and by never reaching the child's best interests analysis. For reasons that follow, we affirm.
Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 995 P.2d 682 (2000).
FACTUAL AND PROCEDURAL HISTORY
¶2 Anthony S. ("Father") and Sabrina M. ("Mother") are the biological parents of A.M., born September 2012. On September 26, 2012, A.M. was taken into temporary custody by DCS. In October 2012, DCS filed a petition to have A.M. declared dependent as to Father because of abandonment and neglect. After a dependency hearing, the juvenile court found A.M. dependent as to Father, ordered paternity testing, and set the case plan as family re-unification. The juvenile court later found Father was the biological father of A.M., and DCS moved to terminate Father's parental rights because he was in prison and his sentence was allegedly "of such length that the child will be deprived of a normal home for a period of years." See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(4) (2014).
The juvenile court terminated Mother's parental rights and she did not appeal. Mother's rights are not at issue in this appeal.
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¶3 A severance hearing was held in December 2013. It is uncontested that as of October 2012, Father was incarcerated for a violation of probation. It is also uncontested that Father did not establish a bond with A.M. prior to his incarceration, nor has a parent-child bond since been formed. Father's latest release date from the Department of Corrections is December 22, 2014.
¶4 In February 2014, the juvenile court denied the petition to terminate Father's parental rights. The court found that DCS had failed to prove a statutory basis for termination of parental rights and accordingly the court did not reach the best interests issue. DCS timely appealed. See Ariz. R.P. Juv. Ct. 104(A). We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2014), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2013).
ISSUES AND STANDARD OF REVIEW
¶5 On appeal, DCS argues that the juvenile court misinterpreted two of the factors for termination under A.R.S. § 8-533(B)(4) and that the record does not support the court's decision.
¶6 We review interpretations of statutes and mixed issues of fact and law de novo. In re U.S. Currency in Amount of $26,980.00, 193 Ariz. 427, 429, ¶ 5, 973 P.2d 1184, 1186 (App. 1998). However, we do not reweigh evidence on appeal and defer to the juvenile court's findings of fact. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998). A court is "not required to make findings when denying a motion to terminate the parent-child relationship." Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549-50, ¶ 10, 225 P.3d 604, 606-07 (App. 2010). "[W]e look to the record to determine whether reasonable evidence supported the juvenile court's order." Id. at 550, ¶ 10, 225 P.3d at 607. We will affirm a juvenile court's findings when there is any reasonable evidence in the record that justifies the decision. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 93-94, ¶ 4, 210 P.3d 1263, 1264-65 (App. 2009) (quoting Stevenson v. Stevenson, 132 Ariz. 44, 46, 643 P.2d 1014, 1016 (1982)).
DISCUSSION
¶7 Section 8-533(B) states:
Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court shall also consider the best interests of the child . . .Our supreme court has laid out at least six factors to consider in determining whether a parent's sentence is "sufficiently long to deprive a child of a normal home for a period of years." Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29, 995 P.2d 682, 687-88 (2000). These factors include:
4. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which that parent was convicted is of such nature as to prove the unfitness of that parent to have future custody and control of the child . . . or 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.
(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.
¶8 The juvenile court first found that Father had never met A.M. so there was no parental bond in place, either at the beginning of Father's incarceration or since. Second, the court found, given A.M.'s young age and Father's current incarceration in Kingman, there was little likelihood that a parent-child relationship could be established or nurtured during the incarceration. Third, since Mother's parental rights had been terminated, there was no other parent available to provide A.M. a normal home life.
¶9 However, the court also found, and DCS does not challenge, that Father's sentence was short, with a maximum release date of December 22, 2014, at which time A.M. will be just over two years old.
¶10 We disagree with DCS that the juvenile court misinterpreted factors three and six of the of the Michael J. analysis, thus triggering de novo review. Factor three looks at the relationship between the length of incarceration and the child's age. Michael J., 196 Ariz. at 251-52, ¶ 29, 995 P.2d at 687-88. Factor six looks at the effect on the child who is deprived of a parental presence due to incarceration. Id. As we recently held in Rocky J., a juvenile court may reasonably conclude that a parent's impending anticipated release date of less than a year can be a critical fact in determining A.R.S. § 8-533(B)(4) was not proven. Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 16, 323 P.3d 720, 724 (App. 2014). The juvenile court here also stated the controlling factor was the short length of Father's sentence. As the court concluded:
Father's relatively short sentence and [A.M.'s] young age together compel the conclusion that [a parental] relationship remains possible, and that Father's incarceration is not of such a length as to deprive [A.M.] of a normal home for a period of years.The juvenile court did not misinterpret these two factors.
¶11 The remaining issue is whether DCS provided sufficient evidence for us to conclude there is no reasonable evidence to support the juvenile court's findings. DCS argues that A.M. is at such a young age that given termination of Mother's rights, Father's rights must be terminated to allow for a permanent foster care placement. We disagree with DCS. DCS's only witness expressly testified that a bond could be established upon Father's release from incarceration. Since Father would be released at the latest within one year of the severance juvenile and A.M. would only be around two years old at that time, there is reasonable evidence supporting the court's conclusion that a parental relationship is possible and A.M. will not be deprived of a normal home for a period of years. Since there is reasonable evidence in the record, we affirm on this factor.
¶12 DCS also argues that the juvenile court failed to consider the deprivation of parental presence on A.M. The juvenile court stated that although Father had not made any contact with A.M., A.M. is "still too young to appreciate such contact (or, in this case, the lack thereof)." DCS argues contact is not the same as presence, and presence includes more than cards, gifts, or letters. However, an incarcerated parent is limited to these options to establish a parental presence. See Michael J., 196 Ariz. at 251, ¶ 24, 995 P.2d at 687 (providing examples an incarcerated parent can take to establish "some bond or connection with a child.").
¶13 Additionally, the DCS case manager testified that for a child of A.M.'s age and a parent who is incarcerated, it is not possible to establish a bond. However, the DCS case manager testified she had never attempted to arrange a trip for A.M. to visit his father since Kingman was too long a journey for a child that age. Although DCS argues that Father never attempted to form a bond with his son, A.M. was taken into DCS custody two days after his birth due to Mother's drug usage, and Father was incarcerated less than a month later. Both of these events made it difficult if not impossible for Father to form a bond with A.M. We have held when a parent has no ability to form a relationship with his child, due to the start of incarceration or an individual actively interfering to prevent the relationship, this factor does not weigh in favor of termination. See Rocky J., 234 Ariz. at 441-42, ¶ 18, 323 P.3d at 724-25. This is the case here as DCS took A.M. into foster care less than one month before Father was incarcerated and concluded that having A.M. brought to Kingman to visit Father was not practical given A.M.'s young age. Therefore we find there is reasonable evidence in the record for the juvenile court's decision on this factor as well.
CONCLUSION
¶14 For the foregoing reasons, we affirm the juvenile court's ruling.