Juan C. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUAN C., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.C., N.C., Appellees.

No. 1 CA-JV 18-0039
FILED 7-3-2018

Appeal from the Superior Court in Maricopa County
No. JD38190
The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

Steven Czop, Attorney at Law, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Autumn L. Spritzer
Counsel for Appellees
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MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.

B E E N E, Judge:

¶1 Juan C. (“Father”) challenges the superior court’s order
terminating his parental rights to his two sons. Because reasonable
evidence supports termination, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Alicia N. (“Mother”)1 are the biological parents of
E.C. (born in March 2014) and N.C. (born in February 2015) (collectively,
the “Children”). In August 2015, Father pled guilty to three felonies; two
counts of aggravated assault and one count of assisting a criminal street
gang. In early November 2015, he was sentenced to two concurrent terms
of five years’ imprisonment and placed on probation for two years
following his release, with a maximum release date of November 2019.
After Father was incarcerated, Mother became homeless and in mid-2015
sent E.C. and N.C. to live with separate relatives who were granted
guardianships by the court. When Mother tried to terminate the
guardianships, the Children’s guardian ad litem filed private dependency
petitions. The petitions alleged that Mother was unable to parent due to
abandonment, neglect, substance abuse, and mental health, and that Father
was unable to parent due to incarceration and abandonment.

¶3 The Department of Child Safety (“DCS”) substituted in as
petitioner and withdrew the allegation of abandonment against Father.
Father denied the allegation but submitted the issue of dependency to the
superior court. The court found the Children dependent on the ground of
incarceration. Because Father was incarcerated, DCS could not offer him
reunification services but encouraged him to participate in any services
available while in prison.

1 The superior court also terminated Mother’s parental rights to the
Children, but she is not a party to this appeal.

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¶4 In September 2017, DCS moved to terminate Father’s
parental rights pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8-
533(B)(1) (abandonment) and (4) (length of felony conviction). After a
contested termination hearing in January 2018, the superior court
terminated Father’s parental rights on the ground of incarceration and
found that severance would be in the Children’s best interests. The court
found that

Taking into consideration the ‘Michael J.’ factors . . . this
father’s incarceration has and will continue to deprive his
children of a normal home for a period of years. There is no
other parent available to parent the children due [to] the
mother’s own issues . . . . The children are very young and
father has not maintained a normal parent-child relationship
with them and it is unlikely that a normal parent-child
relationship can be established, nurtured and maintained
during father’s incarceration.

¶5 Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶6 The right to parent one’s child is fundamental but not
absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). The superior
court may terminate parental rights if it finds, “by clear and convincing
evidence, at least one of the statutory grounds set out in section 8-533” and
by a preponderance of the evidence that termination is in the best interests
of the child.2 Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12
(2000); Kent K., 210 Ariz. at 284, ¶ 24.

¶7 “[W]e view the evidence and reasonable inferences to be
drawn from it in the light most favorable to sustaining the court’s decision,”
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009), and
we will not reverse unless there is no reasonable evidence to support the
order, Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). Because the superior court “is in the best position to weigh the

2 Father does not challenge the superior court’s finding that
termination of his parental rights is in the Children’s best interests; thus, we
do not address it. See Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577-78,
¶ 5 (App. 2017).

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evidence, observe the parties, judge the credibility of the witnesses, and
make appropriate findings,” we will accept its findings of fact unless no
reasonable evidence supports them. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).

¶8 Under A.R.S. § 8-533(B)(4), a parent’s rights can be terminated
when the parent “is deprived of civil liberties due to the conviction of a
felony” or the length of the sentence is such “that the child will be deprived
of a normal home for a period of years.” There is no “bright line” definition
of the length of time required to deprive a child of a normal home. Michael
J., 196 Ariz. at 251, ¶ 29. Instead, the superior 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.

Id. at 251-52, ¶ 29. “[T]here is no threshold level under each individual
factor in Michael J. that either compels, or forbids, severance. It is an
individualized, fact-specific inquiry.” Christy C. v. Ariz. Dep’t of Econ. Sec.,
214 Ariz. 445, 450, ¶ 15 (App. 2007). “The inquiry under § 8-533(B)(4),
however, focuses on the child’s needs during the incarceration and not
solely on whether the parent would be able to continue the parent-child
relationship after release.” Jeffrey P. v. Dep’t of Child Safety, 239 Ariz. 212,
215, ¶ 14 (App. 2016).

¶9 Father argues that insufficient evidence exists to support the
superior court’s finding that the length of his prison sentence would
deprive the Children of a normal home for a period of years. Specifically,
Father argues that the court “should have taken into consideration all of the
factors outlined in Michael J. . . . [and] cannot ignore that most of the Michael
J. factors in the record … are in Father’s favor.” We disagree.

¶10 As a threshold matter, we note that although the superior
court did not list its findings for every factor analyzed, the court explicitly
stated that it considered the Michael J. factors. Additionally, while the court

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is required to consider all relevant factors, it is not required to list every
finding regarding each factor considered. See Michael J., 196 Ariz. at 251, ¶
29; Christy C., 214 Ariz. at 451-52, ¶ 19 (“It imposes an undue burden and
inappropriate task on a trial judge to list every fact upon which his or her
findings are based.”) (citation omitted). Moreover, Father essentially asks
us to reweigh the evidence presented to the superior court, which we will
not do on appeal. See Xavier R. v. Joseph R., 230 Ariz. 96, 100, ¶ 12 (App.
2012).

¶11 Nevertheless, reasonable evidence supports termination on
the ground of incarceration. First, as to the first three factors (the length
and strength of any parent-child relationship existing when incarceration
begins, the degree to which the parent-child relationship can be continued
and nurtured during the incarceration, and 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), the superior court found that the
children “are very young and father has not maintained a normal parent-
child relationship with them and it is unlikely that a normal parent-child
relationship can be established, nurtured and maintained during father’s
incarceration.”

¶12 DCS case manager, Joshua Fulkerson, testified that before
Father was incarcerated, he had a “standard relationship” with the
Children. But once Father was incarcerated and the Children were living
with his relatives before coming under DCS care, Father did not maintain
contact with the Children, did not send cards, gifts, or letters, and spoke
with the Children only when they visited sporadically with Mother. Since
the Children have been in DCS care, Father has had weekly telephone calls
and in-person visits with the Children as facilitated by their caregivers.
Despite more recent contact, however, Fulkerson testified that Father has
failed to maintain a normal parent-child relationship with the Children.
During his incarceration, Father has failed to provide for any of the
Children’s needs. He has not provided any financial support or met the
Children’s physical, social, educational, medical, psychological, or
emotional needs.

¶13 As to the next factor, the length of sentence, Father was
sentenced in November 2015 to a five-year prison term for two felony
convictions with a maximum release date of November 2019. Father asserts
that because he could be released early (he provides no date or date range),
his prison sentence “is not long enough to believe he could not have a
substantial relationship with the children when he was released.”
However, under A.R.S. § 8-533(B)(4), the standard for termination is not

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whether a parent could have a substantial relationship with his child once
released; the standard is when the length of the sentence deprives a child
“of a normal home for a period of years.” The relevant period in
determining whether the length of a sentence will deprive a child of a
normal home for a period of years is the entire period of incarceration. See
Jesus M., 203 Ariz. at 281, ¶ 8 (“We conclude the legislature used the words
‘will be deprived’ in § 8-533(B)(4) to mean ‘will have been deprived’ in total,
intending to encompass the entire period of the parent’s incarceration and
absence from the home.”).

¶14 Here, the superior court found Father’s incarceration had and
would continue to deprive the Children of a normal home for a period of
years. Father had been in custody awaiting sentencing, and therefore
absent from the home, since approximately August 2015; when E.C. was
one and a half years old and N.C. was six months old. The dependency
petitions were filed in late 2016, approximately one year later. At the time
of the termination hearing in January 2018, E.C. was less than four years old
and N.C. was less than three years old. If Father is released in November
2019 (maximum sentence), E.C. will be almost six years old and N.C. will
be over four and a half years old. As such, the Children will have been
deprived of a normal home due to Father’s incarceration for more than four
years, the vast majority of their young lives. This is also true as to the last
contested factor, the effect of the deprivation of a parental presence on the
child. Because Mother was also absent from the home and the Children
lived with relatives, the record shows that the Children’s understanding of
Father’s parental presence currently is that of an incarcerated individual
who has no ability to provide a normal home for them.

¶15 Regarding the next factor, the availability of another parent to
provide a normal home life, the court found that no other parent is available
due to Mother’s own issues. It is undisputed that Mother’s parental rights
to the Children were also terminated. Thus, no other parent is available to
provide a normal home life.

¶16 We find that, based upon our review of the record, reasonable
evidence supports the court’s termination of Father’s parental rights
because Father’s incarceration will deprive the Children of a normal home
for a period of years and therefore affirm. See Mary Lou C., 207 Ariz. at 47,
¶ 8.

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CONCLUSION

¶17 For the foregoing reasons, we affirm termination of Father’s
parental rights to the Children.

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

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