Donald O. v. Dcs, C.O.

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DONALD O., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, C.O., Appellees.

No. 1 CA-JV 18-0085
FILED 8-16-2018

Appeal from the Superior Court in Maricopa County
No. JD14724
The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm PLLC, Phoenix
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee
 DONALD O. v. DCS, C.O.
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

W E I N Z W E I G, Judge:

¶1 Donald O. (“Father”) appeals the juvenile court’s order
severing his parental rights to C.O. based on the length of his incarceration
for a felony conviction. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Staci S. (“Mother”) are the biological parents of
C.O., born in August 2010. 1 The Department of Child Safety (“DCS”) first
learned of C.O. in January 2016, when he needed stitches to mend a dog
bite he received from a pit bull. C.O. and Mother lived with six pit bulls.
The bite was not anomalous. C.O. had required stitches “several times.”

¶3 DCS investigated and determined that C.O. lived in unsafe
home conditions. DCS learned that Mother abused methamphetamines.
C.O. had serious behavioral problems. Just five years old, C.O. was
obsessed with guns, crime and violence. He displayed aggression towards
humans and animals. Mother had lost control of C.O. and asked for help.
C.O. regularly hit Mother and once shot her with a BB gun.

¶4 Meanwhile, Father was in prison from his December 2014
arrest and guilty plea for criminal trespass and felony drug possession
(methamphetamines). He was sentenced to four years in prison, with a
historical prior. He reported for his sentence in June 2015, when C.O. was
four years old, and is expected to be released in October 2018, when C.O.
will be eight years old.

¶5 Father has an extensive criminal history, including several
felonies spanning three decades. His prior felonies include aggravated
assault (Arizona, 2003), possession of cocaine (Utah, 1989) and possession

1 The juvenile court also terminated Mother’s parental rights. She is
not a party to this appeal.

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of marijuana (Arizona, 2006). Father has an outstanding arrest warrant in
California for aggravated assault.

¶6 C.O. had a relationship with Father before his June 2015
incarceration, but Father demonstrated poor judgment and parenting skills.
C.O. admired and sought to imitate his Father. Father welcomed and
encouraged the adoration. For instance, Father arranged for C.O. to drink
cola from emptied mini-liquor bottles and bought him candy cigarettes.
Father described C.O. as “pretty impressionable” and conceded that C.O.
“look[ed] at me as a gangster” and “look[ed] at my tattoos” before
incarceration. Indeed, C.O. “squiggle[d]” markers on his own face in hopes
of matching the “Wanna” and “Fuck?” tattoos above his Father’s eyebrows.

¶7 The relationship hinged on age-inappropriate activities,
including guns, knives and violent video games. C.O. boasted that “he saw
his father shoot someone,” although Father denied it. Father and C.O.
attended knife and gun shows, where C.O. would “get to pick out [a] little
knife” for his collection. C.O. said that “his dad had guns” and “let him
shoot them.” In conversations with his DCS case manager, C.O. shared no
positive or constructive memories about Father; he shared mostly gun-
related memories. The court found that C.O. was obsessed with guns, crime
and violence at five years old.

¶8 The court characterized Father’s employment history as
“unstable” before incarceration, and Father called it “sporadic,” but he
claimed he made enough money to provide for his family. Arrest records
confirm that Father had substance abuse issues for almost 30 years; from
his 1989 conviction for possession of cocaine to his 2014 conviction for
possession of methamphetamines. Father claims he matured in prison and
resolved his substance abuse problems, but he admitted to using heroine
on his birthday in September 2017, just weeks before the severance hearing.

¶9 C.O. and Father maintained some contact during Father’s
present incarceration, including a couple of personal visits, plus occasional
letters and phone calls. Father sent C.O. a covert communication about the
severance action in violation of DCS rules. Father wrote: “We’ve got to go
to court in September. They’re trying to take you from me. . . . I don’t know
if they have ask[ed] you where you want to live, but you can tell them you
want to live with me when I get out. You should tell them that if it’s what
you want to do. It’s what I want.” Father’s letter caused C.O. to melt down
and disrupted a potential adoptive placement. It triggered an “aggressive
outburst,” extreme anger, violence and suicidal thoughts. For instance,

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C.O. said he “wanted to just find a gun, so he could shoot his head.” DCS
terminated all further contact between Father and C.O.

¶10 DCS took temporary custody of C.O. in February 2016 and
petitioned the juvenile court to find C.O. dependent as to Father, alleging
neglect due to substance abuse and incarceration. Father denied the
allegations in the petition but submitted the issue to the court, which found
C.O. dependent as to Father.

¶11 The court adopted a plan of family reunification. C.O. cycled
through three placements (his family godmother, a licensed foster family
and a group home) before his current placement, a licensed foster family,
was identified around May 2017.

¶12 DCS moved to terminate Father’s parental rights based on
A.R.S. § 8-533(B)(4), length of incarceration for a felony offense. The court
held a contested two-day severance hearing in November 2017 and
February 2018. Several witnesses testified, including Father, the DCS case
manager and two therapists. The court then terminated Father’s parental
rights, finding that DCS proved the statutory ground and that termination
was in C.O.’s best interests.

¶13 Father timely appealed. We have jurisdiction pursuant to
Ariz. Const. art. 6, § 9, and A.R.S. § 8-235(A).

DISCUSSION

¶14 Father has a fundamental but not absolute right to custody of
his child. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). Parental rights are terminable only when the juvenile court finds
clear and convincing evidence of a statutory ground for termination under
A.R.S. § 8-533(B) and a preponderance of the evidence shows that
termination is in the child’s best interests. Id. at 248-49, ¶ 12.

¶15 We affirm a severance order of the juvenile court unless the
record contains no reasonable evidence to support its factual findings.
Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286-87, ¶ 16 (App. 2016). Our
limited task on appeal accounts for the unique and meaningful role of the
juvenile court, which heard and weighed the evidence, observed the parties
and witnesses, gauged credibility and resolved questions of fact. Id. We
neither reweigh the evidence nor substitute our perspective. Id.

A. Statutory Ground of Incarceration.

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¶16 A juvenile court may terminate a parent’s rights if it finds 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). The statute does not define “a period of years”
and Arizona courts have not identified a definitive milepost at which “a
sentence is sufficiently long to deprive a child of a normal home for a period
of years.” Michael J., 196 Ariz. at 251, ¶ 29. Each case instead depends on
its particular facts. Id.

¶17 The Arizona Supreme Court has articulated six factors to
determine whether a parent’s incarceration compels termination of parental
rights. Id. at 251-52, ¶ 29. The non-exclusive factors are: (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 that 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. We examine each relevant factor in turn. 2

¶18 Length and strength of pre-incarceration relationship. The
juvenile court recognized that Father and C.O. shared a relationship before
his June 2015 incarceration, but concluded that “Father exercised poor
judgment in exposing the child to violent video games, introduced him to
weapons at too young an age, and created an environment for his son which
caused the child to act aggressively with his mother, others and animals.”
The record contains reasonable evidence to support the court’s assessment,
including testimony from Father himself and the DCS case manager.

¶19 Father’s argument is not persuasive. He points to his own
testimony at the severance hearing to prove that he was a “fairly involved
parent,” painting an idyllic pre-incarceration portrait in which Father fed
and bathed the child, and took him fishing, biking and swimming. The
juvenile court, however, heard evidence that contradicted Father’s
narrative. And ultimately, based on this evidence, the court rejected
Father’s description of “an idyllic childhood in which he was constantly
there for his son.” See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282,
¶¶ 11-12 (App. 2002) (deferring to juvenile court’s resolution of factual

2 Father does not contest the fifth factor. Mother is unable to provide
C.O. with a normal life because her parental rights have been terminated.

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Decision of the Court

dispute between parents and case manager). We will not reweigh the
evidence on appeal or second-guess the juvenile court. Jennifer S., 240 Ariz.
at 286-87, ¶ 16.

¶20 Relationship during incarceration. The court found that Father
“demonstrated tremendously poor judgment” in his relationship with C.O.
during incarceration. The record includes reasonable evidence to support
the court’s decision. The court heard evidence about Father’s painful,
disruptive and improper letter to C.O., where Father heaped enormous
pressure on the child to make Father’s case and preserve his parental status.
The letter “unfortunately precipitated a regression in the child’s behavior
and adversely impacted him.” And tellingly, C.O.’s behavior improved
after DCS prohibited further contact with Father.

¶21 Father’s argument again misses the mark. He frames and
presses an alternative narrative based on other evidence; namely, that he
and C.O. have had occasional contact during his incarceration. But the
juvenile court heard that evidence and rejected his argument. We will not
reweigh the evidence on appeal. Id.

¶22 We separately observe that Father admitted using heroine
while incarcerated in September 2017, fully aware that the juvenile court
would soon hold the severance hearing (in November 2017) to determine
his child’s future.

¶23 Age of child and deprivation of normal home. The court found
that “Father has been incarcerated for a significant portion of this troubled
young man’s life,” which deprived C.O. of a normal home and would
continue to do so. The court also expressed doubt that C.O. would have a
normal home life after Father is released “[g]iven Father’s lengthy criminal
history” and “history of substance abuse,” which would hinder Father’s
search for employment and stable housing and “prevent[ ] [C.O.] from
enjoying a permanent home that tends to his emotional, physical and
psychological needs.”

¶24 We find reasonable evidence to support the court’s finding.
Father has been in prison for much of C.O.’s young life. He entered prison
in June 2015, when C.O. was four years old, and is expected to be released
in October 2018, when C.O. will be eight years old.

¶25 We are unpersuaded by Father’s argument that termination
is not warranted because C.O. “has many years before reaching the age of
majority; thus, affording the Father years in which he would be able to
parent his child.” Our decision must account for the historical facts and

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Decision of the Court

Father’s extended absence to date, which has deprived C.O. of a normal
home for much of his life. Jeffrey P. v. Dep’t of Child Safety, 239 Ariz. 212,
215, ¶ 14 (App. 2016).

¶26 Length of absence. The court examined Father’s length of
absence from C.O.’s life; both as of the severance hearing and his ultimate
release. Jesus M., 203 Ariz. at 281, ¶ 8. The court also discussed the potential
for delayed post-release reunification based on conditions of release and
service requirements. Jeffrey P., 239 Ariz. at 214, ¶ 10 (accounting for post-
release factors that would further postpone reunification). “Reunification
may not occur immediately upon release. Father will be required to
demonstrate sobriety, obtain stable verifiable employment, and engage in
numerous services before reunification can be considered. This would
involve the passage of additional time.”

¶27 We find reasonable evidence to support the court’s finding.
C.O. was 58 months old when Father entered prison and will be 98 months
old when Father is released, meaning Father will have been imprisoned for
over 40 percent of C.O.’s lifetime.

¶28 Father’s myopic focus on his impending release is not
persuasive because it ignores the past (that is, his 40-month absence from
C.O.’s life) while misreading the future (that is, any post-release
requirements that further delay reunification). See id. at 215, ¶ 14.

¶29 Effect of deprivation. Rather than harm C.O., the juvenile court
found that C.O will benefit from a deprivation of Father’s presence. “The
court finds that this child is in clear need of a safe, stable and loving home
to provide for his needs.” The record contains reasonable evidence for this
conclusion. The DCS case manager testified that C.O. suffered adverse
consequences from his contact with Father during incarceration. C.O.
apparently understands the harm and informed the case manager that he
no longer wishes to “reside with his father.” Father does not challenge or
address the juvenile court’s findings.

B. Best Interests.

¶30 Father argues that termination of his parental rights is
contrary to C.O.’s best interests. We disagree. The best-interests prong
turns on whether “the child would benefit from a severance or be harmed
by the continuation of the relationship.” Mary Lou C. v. Ariz. Dep’t of Econ.
Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004) (quotation omitted).

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¶31 The record confirms that severance is in C.O.’s best interests.
To begin, the court found clear and convincing evidence of statutory
grounds for termination based on Father’s incarceration. We have
recognized that “[i]n most cases, the presence of a statutory ground will
have a negative effect on the children.” Maricopa Cty. Juv. Action No. JS-
6831, 155 Ariz. 556, 559 (App. 1988).

¶32 A continued relationship with Father would also rekindle
C.O.’s harmful exposure to “extremely violent video games, a criminal
lifestyle, and the glorification of weapons.” C.O. suffered serious
behavioral problems after his prior exposure. The DCS case manager
testified that C.O. regressed after his prior contact with Father and evinced
a desire to emulate gangster behavior.

¶33 The court further emphasized that C.O. has excelled in his
current placement with a caring and responsible foster family that meets
his needs. See Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23
(App. 2013) (juvenile court “may consider whether the current placement
is meeting the child’s needs”). C.O. “seems to be thriving with a stable,
loving home.” “[H]is behavior is greatly improved and he is no longer
struggling academically.” The DCS case manager testified that C.O. has
gained consistency and structure, along with a positive role model.

¶34 And last, severance makes it possible for C.O. to be adopted.
See Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 10 (App. 2016)
(severance “make[s] the Children eligible for adoption”). The court
recognized that C.O.’s current foster family intends to adopt him if his
behavior continues to improve. This provides “the added benefit of
stability and permanency.”

¶35 The record contains reasonable evidence to support the
juvenile court’s best-interests finding.

CONCLUSION

¶36 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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