Opinion
No. 2 CA-JV 2017-0160
01-17-2018
JOSE C., Appellant, v. DEPARTMENT OF CHILD SAFETY AND X.M., Appellees.
COUNSEL Ritter Law Group, L.L.C., Florence By Matthew A. Ritter Counsel for Appellant Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pinal County
No. S1100JD201500273
The Honorable DeLana J. Fuller, Judge Pro Tempore
AFFIRMED
COUNSEL Ritter Law Group, L.L.C., Florence
By Matthew A. Ritter
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Jose C. appeals from the juvenile court's order terminating his parental rights to his son, X.M., born November 2015, on the ground that his incarceration for a felony conviction would deprive X.M. of a normal home for a period of years. See A.R.S. § 8-533(B)(4). He argues the court erred by severing his rights because he had not abandoned X.M. and instead had acted "persistently to establish his parental relationship," and that the court erred in finding his incarceration would deprive X.M. of a normal home. He additionally asserts the Department of Child Safety (DCS) did not demonstrate that he was unable to parent X.M. or that reunification services would be futile and, thus, did not show termination was in X.M.'s best interests. We affirm.
¶2 X.M. was born substance-exposed to methamphetamine and amphetamine and removed from his mother's care shortly after his birth. DCS placed him with a maternal relative with his half-sibling, where both have remained. On December 1, 2015, DCS filed a dependency petition alleging X.M. was dependent as to both parents. Jose was arrested the day X.M. was born and later sentenced to a two-year prison term after being convicted of a felony. He claimed that he was unaware X.M.'s mother was pregnant and that he learned of X.M.'s birth when he was notified of the dependency proceeding shortly after DCS filed the petition. Jose began writing to X.M. a year after his birth, sending several letters.
¶3 In May 2017, the juvenile court ordered the case plan changed to severance and adoption, and DCS filed a motion to terminate the parents' rights. As to Jose, DCS alleged termination was warranted on 8-533(B)(4) grounds. After a one-day contested hearing, the court granted DCS's motion. This appeal followed.
X.M.'s mother is not a party to this appeal. --------
¶4 To terminate Jose's parental rights, the juvenile court was required to find, by clear and convincing evidence, that Jose was "deprived of civil liberties due to the conviction of a felony" and that his sentence "is of such length that the child will be deprived of a normal home for a period of years." §§ 8-533(B)(4), 8-537(B). The court was also required to find, by a preponderance of the evidence, that termination of Jose's parental rights was in X.M.'s best interests. See § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We view the evidence in the light most favorable to affirming the trial court's ruling. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20 (2000). We will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶5 In Michael J., the supreme court noted that § 8-533(B)(4) "sets out no 'bright line' definition of when a sentence is sufficiently long" to warrant termination and stated that a juvenile court
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.196 Ariz. 246, ¶ 29.
¶6 Jose first argues that, because he had no "legal ability to avoid the severance of his parental rights," the "abandonment justifying severance of his parental rights" was improperly based solely on his imprisonment. But DCS did not allege Jose abandoned X.M., and the termination of his parental rights was not based on abandonment pursuant to § 8-533(B)(1). And Jose has not developed any argument that the factors identified in Michael J. do not support the juvenile court's decision here. Thus, we do not address this issue further. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88 (App. 2008) (argument on appeal waived by party's failure to adequately develop it).
¶7 Jose further asserts our supreme court in Michael J. suggested that a three-year incarceration was "the minimum period justifying severance." Thus, he reasons, termination was inappropriate because he "was due to be released from incarceration one day after [X.M.]'s second birthday." Nothing in Michael J. can reasonably be read to establish a minimum incarceration period before termination is authorized under § 8-533(B)(4). Instead, the court stated a juvenile court must "consider each case on its particular facts," noting that 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." 196 Ariz. 246, ¶ 29.
¶8 Last, Jose asserts the juvenile court erred in finding termination was in X.M.'s best interests because DCS did not show that Jose was unable to parent or that providing services would have been futile. No such showing was necessary. A best-interests finding may be "based on either a benefit to the child from severance or some harm to the child if severance is denied." Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 16 (2016). The record amply supports the court's conclusion that severance was in X.M.'s best interests because it ensures he would remain in the only home he has ever known, with his half-sibling. See id. ¶ 15 (stability for child "[o]f foremost concern" in evaluating best interests).
¶9 We affirm the juvenile court's order terminating Jose's parental rights.