JOE T v. ADES, et al

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JOE T., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC) SECURITY, JOSEFINA T., JOE T.,) JOANNA T., ) ) Appellees. ) ______________________________) DIVISION ONE FILED: 10/11/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-JV 12-0118 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G) Ariz.R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD19342 The Honorable, Joan M. Sinclair, Judge AFFIRMED The Stavris Law Firm, PLLC By Alison Stavris Attorney for Appellant Thomas C. Horne, Attorney General By Jamie R. Heller, Assistant Attorney General Attorney for Arizona Department of Economic Security G E M M I L L, Judge Scottsdale Phoenix ¶1 Joe T. ( Father ) appeals the juvenile court s order terminating his parental rights to Josefina, Joe, and Joanna (collectively, the children ), pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(4) (Supp. 2011). 1 For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY Father and Veronica R. ( Mother ) 2 are the biological ¶2 parents of Josefina, born 2005; Joe, born 2006; and Joanna, born 2009. Father has a history of criminal offenses, three felony drug convictions prior to 2001. including On December 17, 2008, Father was arrested and charged with felony possession of narcotic drugs paraphernalia. for sale and felony possession of drug Father subsequently pled guilty to one count of felony possession of narcotic drugs for sale and was sentenced in 2009 to five years in prison. ¶3 Father Josefina was testified living with that him, at the time of Joe was living his with arrest, paternal grandmother, and Joanna was unborn. Approximately 18 months after Department Father s arrest, the Arizona of Economic Security ( ADES ) filed a petition on July 9, 2010, alleging the 1 In this decision, we cite the current version of statutes that have not materially changed since the events at issue. 2 Mother s parental rights to the children were terminated on May 16, 2012, and are not at issue in this appeal. 2 children were dependent as to Father and Mother for reasons of neglect. ADES specifically contended Father had neglected the children due to his provided for five-year their basic prison needs, term and including food, housing, medical care, and financial assistance. the petition, Father had not established he had not clothing, At the time of paternity of the children, had not had any contact with Josefina and Joe since his arrest on December 17, 2008, and had never met Joanna. ¶4 At the dependency mediation in August 2010, Father stipulated that the children were dependent as to him based on his incarceration. All parties agreed Father would submit to paternity testing and participate in services available at the prison facility. Accordingly, if paternity was established, a psychological consultation would be performed to determine if visitation was appropriate. Visitation, however, was at the discretion of Child Protective Services ( CPS ), a division of ADES. Finally, Father agreed to CPS s proposed case plan of family reunification. ¶5 In September 2010, the juvenile court granted ADES s motion for paternity testing and ordered Father to participate. Father and the children all submitted to testing and the results established Father as the biological father of all three children. ¶6 In approximately October 3 2011, a psychological consultation was performed with Father prison facility was the regarding appropriate whether visitation at for the children. 3 CPS did not, however, approve sending the children to the prison to visit Father. ¶7 While incarcerated, Father participated in various classes including Men s Parenting, Dads 101, and the President s Initiative Claudia on Hoff Parenting. four or Father five also letters for sent CPS the case manager children. Hoff ensured the letters were read to the children and sent Father a letter with encouraged pictures the of children the to children. draw Additionally, pictures Hoff for When Father. presented with Father s letters, however, the children did not ask about remember Father him. and, During in Hoff s Hoff s opinion, monthly did not seem to visits, the children neither talked about Father nor initiated conversations about him. Father admitted that his incarceration deprived the children of having a normal relationship with him and negatively affected their parent-child bond. ¶8 ADES filed a motion to terminate Father s parental rights to the children on December 30, 2011, alleging that his felony conviction deprives him of his civil liberties and his 3 The record on appeal did not contain the content or results of the psychological evaluation. Where matters are not included in the record on appeal, the missing portions of the record will be presumed to support the action of the trial court. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). 4 sentence was of such length that it would deprive the children of a normal home for a period of years. ADES also alleged termination was in the children s best interest. On May 16, 2012, after a contested severance hearing, the juvenile court found (1) Father s sentence would deprive the children of a normal home for a period of years, under A.R.S. § 8-533(B)(4), and (2) severance was in the children s best interests. ¶9 Father timely appeals and we have jurisdiction pursuant to A.R.S. §§ 8-235 (2007), 12-120.21 (2003), and 122101 (Supp. 2011). ANALYSIS ¶10 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 witnesses, and make appropriate findings. credibility of Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). accept the juvenile court s Therefore, findings of this court fact will unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous. juvenile court s reviewed de novo. interpretation of a statute, Id. however, The is Kimu P. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 39, 43, ¶ 13, 178 P.3d 511, 515 (App. 2008). ¶11 Although the right to have custody of one s child is 5 fundamental, it is not absolute. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000) (citation omitted). To terminate parental rights, a juvenile court must find the existence of at least one statutory ground provided in A.R.S. § 8-533 and find that termination is in the best interest of the child. Id. While statutory grounds for termination require clear and convincing evidence, only a preponderance of the evidence is required to establish that severance will serve the best interests of the child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 288, ¶ 41, 110 P.3d 1013, 1018, 1022 (2005). ¶12 Father does not contest the juvenile court s finding that severance was in the children s best interest. He argues, instead, that the length of his felony conviction sentence was insufficient 533(B). ¶13 to sever his parental rights under A.R.S. § 8- Therefore, we limit our analysis to this issue. Under termination of A.R.S. a § 8-533(B)(4), parent-child in relationship relevant is part, justified the when 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. See Maricopa County Juv. Action No. JS-5609, 149 Ariz. 573, 575, 720 P.2d 548, 550 (App. 1986) (defining normal home as a home in which the parent has a presence). 6 In making this determination, however, there is no bright line rule based upon a specific sentence length. Ariz. at 251-52, ¶ 29, 995 P.2d at 687-88. Michael J., 196 Instead, the court considers relevant factors including: (1) the length and strength of any parentchild 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. In considering the factors, the determination is to be an individualized, fact specific inquiry with no threshold level under each factor compelling or forbidding severance. Christy C. v. Ariz. Dep t of Econ. Sec., 214 Ariz. 445, 450, ¶ 15, 153 P.3d 1074, 1079 (App. 2007). ¶14 The facts in the record support the juvenile court s finding that Father s prison sentence would deprive the children of a normal 533(B)(4). home for a period of years under A.R.S. § 8- When Father went to prison, Josefina was three years of age, Joe was two years of age, and Joanna had not yet been born. In assessing Father s relationship with Josefina and Joe at the time of his arrest and incarceration, the juvenile court 7 recognized the relationships were the same as expected of any parent of two children at that age. also recognized the lack of a Even so, the juvenile court parent-child relationship considering the children had not seen Father in three years, a time span covering more than a third of Josefina s life, a majority of Joe s life, and the entirety of Joanna s life. ¶15 In addition, Hoff testified that the children did not seem to remember their Father. neither initiated She explained that the children conversations regarding Father nor talked about him, thereby indicating their relationship with Father was not strong. ¶16 Father argues CPS deprived him of his right to have consistent visitation with the children while incarcerated, which inhibited his ability to maintain a parent-child bond. There is no evidence in the record, however, showing Father took any action to contact the children during the first year and a half of his incarceration, prior to CPS s involvement. Although Father claims an entitlement to services, CPS has no duty to provide reunification length of sentence. services when termination is based on James H. v. Ariz. Dep t of Econ. Sec., 210 Ariz. 1, 2, ¶¶ 6-7, 106 P.3d 327, 328 (App. 2005). The damage to the parent-child relationship that justifies severance stems from the enforced physical separation of the parent from the child, and nothing [CPS] has to offer in the way of services can 8 affect that reality. mediation Father agreement would have Id. at 3, ¶ 9, 106 P.3d at 329. provided CPS visitation, the and power CPS to The determine ultimately if determined visitation with Father was not appropriate. ¶17 Father also argues that the length of his sentence does not support termination. He points out that he only had an additional year and a half before release at the time of the severance trial. The statutory ground for severance under A.R.S. § 8-533(B)(4), however, is based on the entire period of a parent s prison term and absence from the home, not sentence remaining at the time of the severance trial. M., 203 Ariz. at 281, ¶8, 53 P.3d at 206. the Jesus Additionally, the court must consider the entire length of the sentence and not whether the parent may be parole eligible within that time. 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). The record supports the juvenile court s consideration of the length of Father s prison term. ¶18 another Other relevant factors, including the availability of parent and the effect of child, should also be considered. a parental absence on the Father does not dispute that Mother would be unavailable to provide a normal home for the children. incarceration Additionally, had deprived Father the 9 recognized children of having that a his normal relationship with him and that it had negatively affected their parent-child bond. The children have been without a father s presence since December 2008. ¶19 Finally, Father relies on the decision in Ariz. Dep t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 225 P.3d 604 (App. 2010), in which this court affirmed the juvenile court s denial of an ADES s motion to terminate parental rights under A.R.S. § 8-533(B)(4). Father s reliance, however, is misplaced. In Matthew L., this court viewed the evidence in the light most favorable to emphasized sustaining the discretion the juvenile vested in the consider and weigh all relevant factors. P.3d at 608. court s ruling juvenile court and to Id. at 551, ¶ 19, 225 Because reasonable evidence supports the juvenile court s order terminating Father s parental rights, we find no abuse of the juvenile court s considerable discretion. ¶20 Sufficient evidence in the record supports the juvenile court s finding that Father s sentence would deprive the children of a normal home for accordance with A.R.S. § 8-533(B)(4). 10 a period of years in CONCLUSION ¶21 court s For order the foregoing terminating reasons, Father s we affirm parental the rights juvenile to the children. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: _____/s/____________________________ ANN A. SCOTT TIMMER, Presiding Judge _____/s/____________________________ MARGARET H. DOWNIE, Judge 11

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