FLOYD B. 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 FLOYD B., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, F.B., G.B., B.B., A.B., ) ) Appellees. ) ) DIVISION ONE FILED: 8/20/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-JV 13-0073 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G) Ariz.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. JD20468 The Honorable Aimee L. Anderson, Judge AFFIRMED Christina Phillis, Maricopa County Public Advocate By Suzanne W. Sanchez, Deputy Public Advocate Attorney for Appellant Phoenix Thomas C. Horne, Arizona Attorney General By Erika Z. Alfred, Assistant Attorney General Attorney for Appellee Tucson Law Office of Iris Garcia Maes By Iris G. Maes Guardian Ad Litem for Children Phoenix C A T T A N I, Judge ¶1 Floyd B. appeals the juvenile court s order terminating his parental rights to F.B., G.B., B.B., and A.B. 1 For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND 2 ¶2 Floyd is the biological father of F.B., G.B., B.B., and A.B. (born 2003, 2004, 2005, and 2009, respectively). not incarcerated, Floyd lived with the biological mother, Judy S. ( Mother ). 3 children and When their After the birth of his oldest child, Floyd was in prison for a total of three years (June 2003 to June 2004 and April 2006 to April 2008). Floyd is currently incarcerated and has been since September 2009; his scheduled early release date is in August 2018 and his regular release date is in March 2020. ¶3 In June 2011, the Child Abuse Hotline received report alleging that Mother was neglecting the children. investigation, the Arizona Department of Economic a Upon Security ( ADES ) learned that both parents were incarcerated, and that 1 The caption in this appeal children by their initials. is amended to refer to the 2 On appeal from an order terminating parental rights, we view the evidence in the light most favorable to sustaining the court s findings. Manuel M. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). 3 Although the court terminated Mother s parental rights, she is not a party to this appeal. 2 unwilling and inappropriate individuals were caring for the children. ¶4 ADES removed the children from where they were staying and filed a dependency petition alleging that the children were dependent due to abuse or neglect by both parents. The juvenile court found the children to be dependent as to both parents, bringing the children under the supervision and control of ADES. ¶5 Floyd agreed with ADES that in-person visitation with the children was not feasible due to distance. telephonic contact with the children, but Floyd requested ADES refused this request due to logistical issues and based upon a consultation with the children s therapist. had telephonic or in-person Therefore, none of the children visits with Floyd during the to four dependency action. ¶6 According to ADES, Floyd sent one letters/cards per month 4 and one book with a DVD to the children during the dependency action. Floyd did not provide any child support during his incarceration. ¶7 ADES advised Floyd to utilize services available to him in prison. programs for Floyd completed parenting classes, as well as self help with anger management, cognitive reconstructing, and cognitive thinking. 4 Floyd alleges that letter/cards per month. he sent 3 the children three to four ¶8 In June 2012, ADES filed a Motion for Termination of Parent-Child conducted a Relationship. one-day In severance February hearing and 2013, the terminated court Floyd s parental rights due to the length of his sentence after also finding severance to be in the best interests of the children. ¶9 Floyd timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) and 8- 235(A). 5 DISCUSSION ¶10 The juvenile court may terminate a parent-child relationship upon a finding that at least one statutory ground for severance has been established by clear and convincing evidence, and that severance is in the best interests of the child based upon a preponderance of the evidence. A.R.S. § 8- 533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We review the juvenile court s severance order for an abuse of discretion and accept the court s factual findings unless clearly erroneous. Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). 5 Absent material revisions after the relevant date, statutes cited refer to the current version unless otherwise indicated. 4 ¶11 Pursuant to A.R.S. § 8-533(B)(4), the court may terminate parental rights 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. The length of a parent s sentence, by itself, is not dispositive; [i]nstead, the juvenile court must consider case. the many facts and circumstances specific to each Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 281, ¶ 9, 53 P.3d 203, 206 (App. 2002). ¶12 In Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, 251-52, ¶ 29, 995 P.2d 682, 687-88 (2000), the supreme court provided further guidance: The trial court, in making its decision, 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 parentchild 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. ¶13 A court order terminating the parent-child relationship must be in writing and recite the findings upon which the order is based. A.R.S. § 8-538(A). Under Rule 66(F)(2)(a) of the Rules of Procedure for the Juvenile Court, 5 the court must specify at least one factual finding sufficient to support each [ ] conclusion[] of law. Ruben M. v. Ariz. Dep t of Econ. Sec., 230 Ariz. 236, 240, ¶ 22, 282 P.3d 437, 441 (App. 2012). The findings of fact and conclusions of law should be sufficiently specific to enable the appellate court to provide effective review. ¶14 Floyd does Id. at 241, ¶ 25, 282 P.3d at 442. not challenge the superior court s determination that severance would be in the children s best interests. Instead, Floyd argues that (1) the court abused its discretion by not making complete and accurate findings to support its decision to terminate his parental rights to his children and (2) there was insufficient evidence to establish that his sentence is of such a length that the children would be deprived of a normal home for a period of years under A.R.S. § 8-533(B)(4). ¶15 As to Michael J. factor one, the court concluded that Floyd does not incarceration. have In a bond support with of the due to conclusion, this children his the court s written findings indicate Father was previously in prison and unable to parent the oldest 3 children during parts of their lives due to his prior incarcerations. The children have not discussed having a bond or relationship with their Father with CPS case manager. Although Floyd argues that he was the children s primary caregiver when he lived with the children and 6 Mother prior to his current incarceration, the record reflects that he has only children s lives. been present for a short period of the At the time of Floyd s current incarceration, F.B. was six, G.B. was five, B.B. was three, and A.B. was seven months old. Floyd had only been present for approximately three years of F.B. s life, two years of G.B. s life, one year of B.B. s life, and seven months of A.B. s life. ADES case manager regarding their reported father that the primarily Additionally, the children s related to conversations letters they received from him, and that those conversations diminished over time. Thus, there is clear and convincing evidence supporting the court s finding that there has been very little if any parental relationship that has been established between Floyd and the children due to his incarceration for the majority of the children s lives. ¶16 As to Michael J. factor two, the court concluded that Floyd cannot establish or maintain a parent-child relationship during his long period of incarceration. conclusion, Father has the court s written written approximately In support of this findings 20 letters state, or [a]though cards children, there were many months that Father wrote none. to the Father is housed hours away from the children and therefore in-person visitation is impracticable. Although Floyd argues that he sent approximately 60 letters/cards to the children, the record 7 reasonably supports the court s finding that Floyd sent fewer letters based upon the ADES case manager s testimony that Floyd sent one to four letters/cards per month. Floyd agreed that the distance between Yuma, where he is incarcerated, and Maricopa County, where the children reside, makes in-person visitation impractical. logistical ADES reasons also and children s therapist. would only be able ruled out based telephonic upon a visitation consultation with for the As the ADES case worker testified, Floyd to nurture a minimal relationship throughout the remainder of his incarceration due to lack of frequent contact and participation in the children s day-to-day lives. Therefore, substantial evidence supports the court s findings and conclusion as to this Michael J. factor. ¶17 As to the third Michael J. factor, the court concluded that Floyd s incarceration would deprive his young children of a normal home. children s In support of this conclusion, the court noted the birthdates and explained, Father is not able to provide a home for the children while incarcerated due to being in prison for the next five (5) years. Declining to sever the parent-child the relationship would leave children without permanency and stability for another five to seven years because Floyd s prison sentence will end in 2018 (if he is granted early release) or 2020. his prior Floyd s current incarceration, coupled with incarcerations, has 8 essentially rendered him unavailable to parent or otherwise provide a normal home. ADES case manager testified that Floyd s incarceration The would deprive the children of a normal home because he would only be able to minimally parent the children. The children would not have access to any parent until Floyd was released from prison. Thus, substantial evidence supports the court s findings and conclusion as to this Michael J. factor. ¶18 As to Michael J. factor four, the court concluded that Floyd has Floyd been does sentenced not incarceration, dispute or his to a long his period criminal projected release of incarceration. record, his current dates. Instead, he argues that because his children will not have reached the age of majority severance. reflects, by his release, this factor does We find this argument unpersuasive. by the time of his release in 2018 not support As the record or 2020, his children will have lacked stability and permanency for most of their lives. Thus, substantial evidence supports the court s findings and conclusion regarding this Michael J. factor. ¶19 As to Michael J. factor five, the court concluded that Mother is unable to provide a home for the children due to her parental rights incarceration. being severed due to abandonment and Floyd concedes that there is no other parent available to provide a normal home life for the children during his incarceration. Therefore, substantial evidence supports the 9 court s findings and conclusion regarding this Michael J. factor. ¶20 As to Michael J. factor six, the court concluded that due to Floyd s incarceration, the children will be deprived of a normal home for a period of years. In support of this conclusion, the court s written findings state that Father is not able to provide a home for the children while incarcerated due to being in prison for the next five (5) years. The court also noted during the severance hearing that [t]hese children do not have any biological parent who is both willing and able to parent them or even be involved in their lives on a day to day basis or even a sporadic basis. The court found that it would be detrimental to the children to make them wait until [Floyd] is released because the children need permanency and stability that no biological parent has been able to provide. The record supports this finding as the ADES case manager testified that the children need a stable household and a parent who can care for them and be physically there for them. The ADES not case manager opined that if Floyd s rights were terminated, the children would be detrimentally affected by the lack of a substantial safe, stable evidence environment supports the conclusion as to this Michael J. factor. 10 to live court s in. findings Thus, and ¶21 The court made adequate written findings pursuant to A.R.S. § 8-538 and Rule 66(F)(2)(a) as to the Michael J. factors to support its conclusions of law. Sufficient evidence supports the court s findings and conclusions. Therefore, the court did not abuse its discretion by severing Floyd s parental rights to his children. CONCLUSION ¶22 For the foregoing reasons, we affirm. /S/ KENT E. CATTANI, Judge CONCURRING: /S/ PETER B. SWANN, Presiding Judge /S/ JOHN C. GEMMILL, Judge 11

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