BRIAN O. 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 Brian O., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) ) SECURITY, G.O., F.O., B.O., ) Appellees. ) ) 1 CA-JV 13-0107 DIVISION ONE FILED: 10/17/2013 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD21172 The Honorable Aimee L. Anderson, Judge AFFIRMED John L. Popilek, P.C. By John L. Popilek Attorneys for Appellant Scottsdale Thomas C. Horne, Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security W I N T H R O P, Presiding Judge ¶1 Brian O. ( Father ) appeals the juvenile court s order terminating his parental rights to G.O., F.O., and B.O. ( the Children ). support the Father argues that reasonable evidence does not statutory ground for termination and that termination was not in the best interests of the Children. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On December 17, 2010, Father was sentenced to five years incarceration for two counts of attempted sexual assault and one count of kidnapping. Kassandra O. ( Mother ) was sentenced on October 4, 2011 to eight months incarceration for using drugs in violation of probation for a 2008 conviction for domestic violence. Both criminal offenses stemmed from domestic violence against each other. As a result of Mother s arrest and Father s incarceration, the Children lived with their paternal aunt and uncle beginning in September 2011. 1 On December 15, 2011, the guardian ad litem for the Children filed a dependency petition alleging that the Children were dependent as to Father and Mother. 2 ¶3 On January 5, 2012, at the initial dependency hearing, the juvenile court found the Children dependent as to Father and ratified a family reunification case plan, concurrent with an 1 In November 2012, after a charge of domestic violence between paternal aunt and uncle, ADES removed the Children and placed them in separate foster homes. 2 The Arizona Department of Economic Security ( ADES ) later substituted as petitioner for the guardian ad litem. 2 alternative case plan of severance and adoption. 3 24, 2012, ADES moved to terminate Father s On September parental rights because of his five-year incarceration and in the best interests of the Children, pursuant to Arizona Revised Statutes ( A.R.S. ) section 8 533(B)(4) (West 2013). 4 hearing began on March 26, 2013. A three-day termination ADES entered into evidence Father s criminal records, including a conviction for criminal damage related to domestic violence and possession of marijuana in 2006, and his current conviction and five-year incarceration for attempted sexual assault and kidnapping. Mother provided extensive testimony about Father s history of drug abuse and domestic violence, although she testified that the drug use was not constant. Father also provided testimony about his illicit drug use and his sexual assault against Mother. The CPS case manager a testified that the Children never had safe home environment as a result of drug abuse and domestic violence, Father s felony conviction deprived the Children of a normal home for a period of years, and termination of parental rights would be in the best interests of the Children. The case manager also testified that relative placement was available for 3 The juvenile court later found the Children dependent as to Mother on April 19, 2012. 4 We cite the current versions of the relevant statutes, unless otherwise noted, because no revisions material to this decision have since occurred. 3 the Children and that in the alternative the Children were adoptable. At the conclusion of the hearing, the juvenile court terminated Father s parental rights to the Children, finding that ADES proved the statutory ground of incarceration under the Michael J. factors 5 and that termination of parental rights was in the best interests of the Children. ¶4 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, A.R.S. § 8-235(A), and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. Although Father filed his notice of appeal prior the juvenile court filing a signed order finalizing termination, we maintain jurisdiction. its bench ruling of See Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981) ( [A] premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed. ). ANALYSIS ¶5 Father argues that the juvenile court erred when it terminated his parental rights to the Children because of his incarceration for five years. We disagree. 5 See Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29, 995 P.2d 682, 687-88 (2000). 4 ¶6 Because the juvenile court [is] in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings, Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987), we will not disturb the juvenile court s order severing parental rights unless its findings are clearly erroneous, meaning no reasonable evidence supports them. Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). To terminate parental rights pursuant to A.R.S. § 8 533(B)(4), a juvenile court must find, by clear and convincing evidence, [t]hat 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); see also Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. The court also must find, by a preponderance of the evidence, that termination is in the best interest of the child. Id. A. ¶7 Termination Pursuant to A.R.S. § 8 533(B)(4) Under A.R.S. § 8 533(B)(4), a criminal sentence for a period of years is not per se grounds for termination. J., 196 Ariz. at 250, ¶ 22, 995 P.2d at 686. Michael In Michael J., our supreme court provided a non-exhaustive list of factors for the trial court to consider: 5 (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. Michael J., 196 Ariz. at 251-52, ¶ 29, 995 P.2d at 687-88. ¶8 Father argues that the juvenile court erred because the Michael J. factors weigh in favor of his continued parental rights. We disagree. As a preliminary matter, Father s contention that the Children will not be deprived of a normal home for a period of years because his anticipated release date is less than inapposite. one year from the termination hearing is What matters to a dependent child is the total length of time the parent is absent from the family, not the more random time that may elapse between the conclusion of legal proceedings for severance and the parent s release from prison. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 281, ¶ 8, 53 P.3d 203, 206 (App. 2002). Thus, the juvenile court properly considered Father s entire five-year period of incarceration. ¶9 At the termination hearing, ADES presented the testimony of Father, Mother, and the CPS case manager about the home life of incarceration. the Children Relying prior primarily 6 to on and the during testimony Father s of the parents and the exhibits presented at the hearing detailing Father s arrest, the trial court found substantial evidence to terminate Father s parental rights. The court found that the length and strength of the parent-child relationship existing when Father s incarceration began was not strong, given Father s history of domestic violence and drug abuse. court noted child s Father s first year pervasive of life through CPS were in place. met twice month with court trial a found even the and during though the youngest voluntary services Children a while incarcerated, visit. That s not Moreover, relationship. incarceration use Although Father testified that he [t]hat s parental drug In particular, the because of termination of parental rights, a the normal Mother s the trial court found that another parent was not available to provide a normal home life during Father s incarceration. Mother and Father s own testimony and Father s sentence therefore provides reasonable evidence to support the trial court s findings that ADES produced evidence to satisfy the Michael J. factors, and we affirm. B. ¶10 Best Interests Father also argues that severing his parental rights is not in the best interests of the Children. severance, the court must find, by a To effectuate preponderance of the evidence, that termination is in the children s best interests. 7 A.R.S. § 8 533(B); Kent K. v. Bobby M., ¶ 22, 110 P.3d 1013, 1018 (2005). 210 Ariz. 279, 284, [A] determination of the [children s] best interest must include a finding as to how the child[ren] would benefit from a severance or be harmed by the continuation of the relationship. No. JS 500274, 167 Ariz. 1, 5, Factors considered are whether: Maricopa County Juv. Action 804 P.2d 730, 734 (1990). 1) an adoptive placement is immediately available; 2) the existing placement is meeting the needs of the child; and 3) the children are adoptable. Raymond F. v. Ariz. Dep t of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010) (citations omitted). ¶11 Considering the harm to the Children by the continuation of Father s parental rights, the trial court found that it would be absolutely detrimental to these children to have a parent-child relationship with Father. The court based its findings on the history of drug abuse, domestic violence, and sexual violence in the household. Father testified about his history of drug abuse and the sexual assault against Mother that triggered his incarceration. Father admitted that he assaulted Mother and that the crime took place with the Children in the home. Mother also extensively testified about Father s drug use and the recurring history of domestic violence between her and Father. Furthermore, the CPS case manager testified and the court found that the Children were adoptable and that the 8 paternal grandparents were interested in adopting them. Based on these findings and the record as a whole, the juvenile court thus found that the Children would benefit from severance. CONCLUSION ¶12 Because reasonable evidence supports the findings of the juvenile court, we affirm the decision to terminate Father s parental rights. _______________/S/_____________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: _________________/S/_______________ MARGARET H. DOWNIE, Judge _________________/S/_______________ JON W. THOMPSON, Judge 9

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