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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESSIE D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, F.V., M.D., M.D., C.D., Appellees.

No. 1 CA-JV 19-0073
FILED 11-14-2019

Appeal from the Superior Court in Maricopa County
No. JD34609
The Honorable Joseph C. Kreamer, Judge

AFFIRMED

COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.

M c M U R D I E, Judge:

¶1 Jessie D. (“Father”) appeals the termination of his parental
rights to his children, Free, born in 2010, Melony, born in 2012, Madeline,
born in 2013, and Creed, born in 2015 (collectively, the “children”). For the
following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2017, the Department of Child Safety (“DCS”)
removed the children from the care of Joana V. (“Mother”). 1 DCS removed
the children from Mother’s care because of homelessness, a history of
domestic violence with her significant other, and substance-abuse issues.
At the time of removal, Father was incarcerated. In July 2017, Father was
convicted of two counts of Aggravated Driving or Actual Physical Control
While Under the Influence of Intoxicating Liquor or Drugs, a class 4 felony.
Father was sentenced to seven years in prison with a maximum release date
of December 2022.

¶3 In June 2018, DCS moved to terminate Father’s parental rights
to the children under the length-of-felony sentence ground, Ariz. Rev. Stat.
(“A.R.S.”) § 8-533(B)(4). The juvenile court held a termination hearing in
November 2018, during which the case manager and Father testified.
Following the hearing, the juvenile court found that Father’s sentence was
of sufficient length to deprive the children of a normal home life for years.
The court further found that DCS had shown by a preponderance of the
evidence that termination of Father’s parental rights would be in the
children’s best interests. Accordingly, the court issued an order granting
DCS’s termination motion regarding Father. Father appealed, and we have

1 Mother’s parental rights to the children were terminated, but she is
not a party to this appeal.

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jurisdiction under A.R.S. § 8-235(A) and Arizona Rule of Procedure for the
Juvenile Court 103(A).

DISCUSSION

¶4 To support the termination of parental rights, DCS must
prove at least one statutory ground for termination by clear and convincing
evidence. A.R.S. § 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22
(2005). The juvenile court “is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and resolve disputed
facts.” ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). We review the
court’s termination decision for an abuse of discretion and will affirm
unless no reasonable evidence supports the court’s findings. Mary Lou C. v.
ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004).

A. The Juvenile Court Did Not Abuse Its Discretion by Terminating
Father’s Parental Rights to the Children Under the Length-of-Felony
Sentence Ground.

¶5 Father argues the juvenile court erred by terminating his
parental rights to the children under the length-of-felony sentence ground.
To terminate Father’s rights under this ground, DCS was required to
establish by clear and convincing evidence that Father “is deprived of civil
liberties due to the conviction of a felony” and Father’s sentence “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. v. ADES, 196 Ariz. 246, 251,
¶ 28 (2000).

¶6 Because Father does not dispute that he has been deprived of
his civil liberties due to a felony conviction, we only address whether
reasonable evidence supports the juvenile court’s finding that Father’s
sentence is of such a length that the children will be deprived of a normal
home life for a period of years. This is a fact-specific inquiry based on
consideration of all relevant evidence. Michael J., 196 Ariz. at 251, ¶ 29.
Relevant factors to consider include but are 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

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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. Here, the juvenile court addressed each
consideration.

¶7 Regarding the parent-child relationship before incarceration,
the court found that the relationship “was not particularly strong.” The
court found that Father was not living with the children before his
imprisonment because he was sleeping in a car outside the shelter where
the children were staying. The DCS case manager also testified that the
children rarely talked about Father after coming into DCS’s care.
Additionally, based on Father’s testimony about his activities with the
children, the court determined that he was not a primary caretaker of the
children.

¶8 Concerning the possibility of maintaining a parent-child
relationship during incarceration, the court did not agree with Father’s
testimony that he could keep a healthy relationship and parent from prison.
The court emphasized the children’s young ages and the lack of meaningful
contact Father can have with them while incarcerated.

¶9 Regarding the age of the children and the likelihood Father’s
incarceration will deprive the children of a normal home life, the court
found the children’s “collective young age . . . makes it virtually impossible
to maintain anything approaching a normal parent-child relationship.” At
the time of Father’s incarceration, the children’s ages ranged from
one-and-a-half to seven years old.

¶10 The court correctly considered the total length of the sentence,
the maximum release date of December 2022, and a potential earlier release
date of September 2022. Furthermore, the court noted that the “time needed
for services to be completed after release” may extend the time for
reunification. The court found a realistic reunification date would be “mid
to late 2023 at the earliest.”

¶11 The court found that another parent is not available because
Mother’s rights had been terminated.

¶12 Finally, the court considered the effect that the deprivation of
a parental presence would have on the children and found that the children
would “essentially be left adrift if Father’s rights are not severed.” The court
determined that a healthy relationship would be highly unlikely and

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emphasized that Father “does not understand what information should be
conveyed to the children regarding his situation.”

¶13 On appeal, Father contends that he had a strong relationship
with the children before his incarceration and that DCS should have
provided visitation. Father further argues that the lack of visitation
prevented him from maintaining the relationship during his imprisonment.
Father’s arguments relate to the first and second Michael J. factors regarding
Father’s relationship with the children before and during his incarceration.
However, Father never raised these issues with the juvenile court. Father
has, therefore, waived his claims regarding visitation. Shawanee S. v. ADES, 234 Ariz. 174, 179, ¶¶ 17–18 (App. 2014) (failure to give the juvenile court
“reasonable opportunity to address . . . and ensure that [DCS is] in
compliance with its obligation to provide appropriate reunification
services” waives the alleged error). Moreover, these arguments ask this
court to reweigh the juvenile court’s evaluation of the factors; however, this
court will “not reweigh evidence, but only look to determine if there is
evidence to sustain the juvenile court’s ruling.” Maricopa County Juv. Action
No. JV-132905, 186 Ariz. 607, 609 (App. 1996).

¶14 None of the factors are dispositive, and reasonable evidence
supports each finding. The evidence demonstrated that Father did not have
a strong relationship with the children before his incarceration and that
Father would not have been able to maintain a healthy relationship during
his imprisonment. Because reasonable evidence supports the court’s
findings, the court did not abuse its discretion in evaluating the factors.
Mary Lou C., 207 Ariz. at 47, ¶ 8.

¶15 Father also argues that his seven-year sentence is not enough
to support termination. There is “no ‘bright line’ definition of when a
sentence is sufficiently long to deprive a child of a normal home.” Michael
J., 196 Ariz. at 251, ¶ 29. The court must, therefore, weigh all the relevant
factors. Id. Here, the court considered all the Michael J. factors and
individually considered the length of the sentence. When evaluating the
length of the sentence, the court considered the “totality of the
circumstances,” including the potential for an earlier release date.
Reasonable evidence supports the court’s finding that the factors, including
the seven-year sentence, indicate the children will be deprived of a healthy
home for years.

¶16 Accordingly, we conclude the court did not err by finding that
Father’s sentence is of such a length that the children will be deprived of a
normal home life for a period of years.

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B. The Juvenile Court Did Not Abuse Its Discretion by Concluding
Termination of Father’s Parental Rights Was in the Children’s Best
Interests.

¶17 Once the court finds a parent unfit under at least one statutory
ground for termination, “the interests of the parent and child diverge,” and
the court proceeds to balance the unfit parent’s “interest in the care and
custody of his or her child . . . against the independent and often adverse
interests of the child in a safe and stable home life.” Kent K., 210 Ariz. at 286,
¶ 35. “[A] determination of the child’s best interest must include a finding
as to how the child would benefit from a severance or be harmed by the
continuation of the relationship.” Maricopa County Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). Courts “must consider the totality of the circumstances
existing at the time of the severance determination, including the child’s
adoptability and the parent’s rehabilitation.” Alma S. v. DCS, 245 Ariz. 146,
146, ¶ 1 (2018). “When a current placement meets the child’s needs and the
child’s prospective adoption is otherwise legally possible and likely, a
juvenile court may find that termination of parental rights, so as to permit
adoption, is in the child’s best interests.” Demetrius L. v. Joshlynn F., 239
Ariz. 1, 4, ¶ 12 (2016). Finally, “[t]he existence and effect of a bonded
relationship between a biological parent and a child, although a factor to
consider, is not dispositive in addressing best interests.” Dominique M. v.
DCS, 240 Ariz. 96, 98, ¶ 12 (App. 2016).

¶18 Here, the juvenile court found that the children’s needs were
being met in their current placement and that adoption of the children by a
single adoptive placement was likely and possible. The children are
currently placed together in a licensed foster home. The DCS case manager
testified that this placement is meeting all their needs and is willing to adopt
all four children.

¶19 Father does not challenge the court’s findings concerning the
children’s adoptability. Instead, Father argues that the best-interests
finding was incorrect for the same reasons the court’s analysis of the
statutory ground for termination was incorrect. Father contends that he has
a relationship with the children and that, by “not permitting visitation or
contact,” DCS skewed the best-interests finding. As previously stated,
Father waived any objection concerning DCS’s conduct regarding visitation
by failing to raise it until after the termination hearing. Shawanee S., 234
Ariz. at 179, ¶¶ 17–18. Regardless, this does not change the finding that the
children would benefit from adoption because Father could not provide a
normal home for years. The children were immediately adoptable and
would benefit from the stability adoption would provide. Reasonable

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evidence supports the court’s finding that severance was in the best
interests of the children because adoption is likely and possible. Demetrius
L., 239 Ariz. at 4, ¶ 16 (“It is well established in state-initiated cases that [a]
child’s prospective adoption is a benefit that can support a best-interests
finding.”). Thus, we conclude the juvenile court did not err by finding the
termination of Father’s parental rights was in the children’s best interests.

CONCLUSION

¶20 For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to the children.

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

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