In Re Term of Parental Rights as to J.G.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO J.G., E.G., and T.J.

No. 1 CA-JV 23-0115
FILED 06-11-2024

Appeal from the Superior Court in Maricopa County
No. JD36135
The Honorable Christopher Whitten, Judge

VACATED AND REMANDED

COUNSEL

David W. Bell Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant Father

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee DCS

Steven D. Eckhardt, Esq.
Stephanie Preciado, Esq.
Counsel for Children
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Anni Hill Foster delivered the decision of the Court, in
which Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe
joined.

F O S T E R, Judge:

¶1 T.G. (“Father”) appeals the superior court’s ruling
terminating his parental rights to J.G., E.G., and T.J. For the following
reasons, this Court vacates the ruling as to the second Michael J. factor and
remands to the superior court for further findings.

FACTS AND PROCEDURAL HISTORY

¶2 J.G. and E.G. were born in 2012 and 2014, respectively. Father
was incarcerated from 2015 until February 2019. When released, Father
lived with his cousin for about two months before moving into the home of
the children’s maternal aunt (“Aunt”) where the children resided. In
November 2019, Father was arrested for committing a felony and sentenced
a few months later to nine-and-a-half years’ imprisonment, with an
expected release date in May 2029. T.J. was born after Father went back to
prison. The children have remained with Aunt during Father’s
incarceration.

¶3 In January 2022, the children’s guardian ad litem petitioned
for dependency, which the court granted a month later after Father pled no
contest to the allegations. The guardian then moved the following January
to terminate Father’s parental rights. After a two-day trial, the court
terminated Father’s rights based on the length of his incarceration.

¶4 Father timely appealed. This Court has jurisdiction under
A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶5 On appeal, Father claims the court erred in finding that (1) the
Department of Child Safety (“DCS”) made diligent efforts to support and
nurture the parent-child relationship, (2) Father’s prison sentence prevents
him from nurturing and maintaining a significant parent-child relationship,

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and (3) terminating Father’s parental rights was in the children’s best
interests. This Court reviews a termination decision for abuse of discretion
and will uphold it unless unsupported by reasonable evidence. Jessie D. v.
Dep’t of Child Safety, 251 Ariz. 574, 579, ¶ 10 (2021).

I. The Superior Court Did Not Abuse Its Discretion by Finding That
DCS Made Diligent Efforts to Support and Nurture the Parent-
Child Relationship.

¶6 Incarcerated parents retain “a fundamental liberty interest in
the care, custody, and management of their children.” Jessie D., 251 Ariz. at
581, ¶ 20 (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). Thus, “DCS must
make diligent efforts to preserve the family by providing services” to
preserve the parent-child bond. Id. at 581–82, ¶ 20.

¶7 Father argues that DCS did not act reasonably or diligently
because it did not facilitate video conferences between him and the children
until one month before the termination trial. The State contends that Father
waived this argument for most of the dependency by not objecting to DCS’s
reunification efforts throughout the dependency and not requesting
visitation until December 2022. This Court agrees with DCS.

¶8 When parents believe the provided services have been
inadequate, they must timely object. Shawanee S. v. Ariz. Dep’t of Econ. Sec.,
234 Ariz. 174, 178, ¶ 13 (App. 2014). But the record throughout the
dependency proceedings demonstrates that Father made no objections to
the findings that DCS made reasonable efforts. It was not until December
2022 that Father noted that he desired greater visitation, but even at that
time nothing shows that he objected to DCS’s efforts. Father’s failure to
object in a timely manner to these efforts constitutes waiver. Id.

¶9 But even if Father had not waived this argument, his position
still fails. DCS was not required to provide services for contact that he was
already receiving. See Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574,
577 (App. 1989) (concluding the department “is clearly not obligated to
provide services which are futile” because “no other services could be
provided which had not already been offered”). Here, Aunt was providing
Father telephonic visits with the children two or three times a week during
the dependency proceedings. Given Aunt’s facilitation of multiple calls per
week, DCS was not required to duplicate that service.

¶10 Father counters that he wanted virtual visits, which, as noted
above, he did not request until December 2022. But the record shows DCS
made efforts to arrange these, though they were unsuccessful in doing so

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until shortly before trial. DCS further recommended Father avail himself of
parenting classes while in prison and informed him it could not refer him
for these classes directly due to his incarceration. Reasonable evidence
supported the superior court’s determination, and the court did not abuse
its discretion in finding DCS made reasonable and diligent efforts to
provide Father with reunification services.

II. The Superior Court Did Not Abuse Its Discretion in Its Findings
on Most of the Michael J. Factors but Erred Regarding Father’s
Ability to Maintain and Nurture the Relationship with His
Children.

¶11 The superior court may terminate a person’s parental rights if
that parent has been convicted of a felony and the length of the sentence
will deprive the child “of a normal home for a period of years.” A.R.S. § 8-
533(B)(4). A normal home is “a stable long-term family environment
outside a foster care placement, where another parent or a permanent
guardian resides and parents the child, and where the incarcerated parent
affirmatively acts to maintain a relationship with the child that contributes
to . . . the child’s stable, family environment.” Timothy B. v. Dep’t of Child
Safety, 252 Ariz. 470, 477, ¶ 27 (2022). When evaluating whether a parent’s
sentence will deprive a child of a normal home, the court must consider all
relevant factors, including the following:

(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. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251–52, ¶ 29 (2000).

A. The Court Did Not Abuse Its Discretion in Its Findings
on Most of the Michael J. Factors.

¶12 When addressing the first Michael J. factor “the court should
consider whether the parent cared for the child, both physically and
financially, and whether the parent resided with the child or regularly
visited the child if they did not live together.” Jessie D., 251 Ariz. at 580, ¶ 11.

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¶13 Here, the court found that Father “did not spend a lot of time
with the children” while he was free in 2019 because “he worked sixteen to
eighteen hours a day, six days a week.” Father correctly notes that the
number of hours worked by a parent cannot by itself dictate the relationship
between parent and child. But the court’s consideration that Father had
been out of prison for only a small part of the eldest children’s lives and
had never met the youngest child does lead to questions about the length
and strength of the relationship. Because evidence in this record provides a
reasonable basis for the court’s decision, and this Court does not reweigh
evidence, there was no abuse of discretion as to this factor. See id. at 582,
¶ 23.

¶14 Further, the children’s ages and the length of Father’s
sentence support the finding that his incarceration will deprive the children
of a normal home life. When Father’s current incarceration began, J.G. was
seven years old, E.G. was five, and T.J. was not yet born. By the time
Father’s expected release date arrives, J.G. will be sixteen, E.G. will be
fourteen, and T.J. will be nine. Father’s present incarceration of nine-and-a-
half years will run over half of the children’s lives. And once Father is
released, reunification may not be immediately possible until he satisfies
additional conditions, thus extending the period even longer. Jeffrey P. v.
Dep’t of Child Safety, 239 Ariz. 212, 214, ¶ 10 (App. 2016).

¶15 Additionally, no other parent or guardian is presently willing
and available to provide the children a normal home life. The children’s
mother (“Mother”) has not contacted the children since March 2020. The
DCS case manager testified that Mother could not effectively parent
because of substance abuse and has shown no improvement during the
dependency proceedings. Mother’s parental rights were terminated on the
grounds of abandonment, prolonged substance abuse, and out of home
placement.

¶16 Courts must also consider whether a permanent guardian is
available to provide a normal home life. Timothy B., 252 Ariz. at 477, ¶ 27.
Aunt and her husband previously sought guardianship over the children
but now wish to proceed only with adoption; DCS no longer views them as
potential guardians. Though Father testified that his mother was willing to
be the children’s permanent guardian, he first shared that information with
DCS the week of trial, and his mother did not testify to corroborate that
information.

¶17 The evidence supports the finding that the effect on the
children of parental deprivation will be minimal. The children, who have

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special needs, have lived with Aunt and her husband for most or all their
lives. The children call Aunt “[m]ommy” and her husband “[d]addy,” and
the eldest two desire to be adopted. Aunt confirmed she will allow
continuing contact between the children and Father. Thus, the court did not
err in finding that five of the Michael J. factors support termination.

B. The Superior Court Misapplied the Second Michael J.
Factor.

¶18 But the court’s determination that the second Michael J. factor
supported termination was in error. The court found that “[i]t would be
nearly impossible for Father [] to have a significant relationship with [the
children] for such a long time with so little consistent direct contact.” The
court appeared focused on the lack of “direct contact” Father has had or
may have with the children as opposed to any “electronic contact”—phone
calls and videoconferences. Direct contact, though, is not the appropriate
standard by which to evaluate this factor. Electronic media afford
imprisoned parents a viable method to nurture and maintain a parent-child
relationship with their children. See Jessie D., 251 Ariz. at 581, ¶ 17 (“[A]n
incarcerated parent can maintain a bond with a child . . . through visits,
phone calls, letters, pictures, and gifts.”).

¶19 Here, Father had phone calls with the children throughout his
incarceration, often multiple times a week. Aunt, who facilitates the phone
calls, testified that the children enjoy those telephonic visits, and the DCS
case manager observed the first video conference and testified that the
children were excited and that the visit was “wholesome” and “really
good.” This evidence supports Father’s strong desire to have a relationship
with the children and his desire to nurture and maintain that relationship
to the extent possible. Importantly, no evidence was presented to contradict
these points. The court’s finding on this second factor, predicated
exclusively on inability to maintain direct contact, cannot withstand
scrutiny because the court’s analysis was directed at the wrong standard
and no evidence presented supports the court’s finding. Indeed, under the
court’s emphasis on direct contact, the second Michael J. factor could never
weigh in an incarcerated parent’s favor. The juvenile court’s finding as to
the second Michael J. factor is erroneous.

¶20 Nevertheless, this one factor alone is not dispositive of a
termination proceeding. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz.
445, 450, ¶ 15 (App. 2007) (“[T]here is no threshold level under each
individual factor in Michael J. that either compels, or forbids, severance.”).
Rather, courts must make “an individualized, fact-specific inquiry” that

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considers “all relevant factors.” Id. But given this requirement for case-by-
case determinations, scenarios may arise where a single factor outweighs
all opposing factors. Thus, depending on the circumstances, “[a] lack of
evidence on one or several of the Michael J. factors may or may not require
reversal or remand on a severance order.” Id. But this Court does not
reweigh evidence. See Jessie D., 251 Ariz. at 582, ¶ 23. Therefore, the superior
court’s order is vacated as to its determination that Father’s prison term
prevents him from maintaining and nurturing a relationship with the
children. The case is remanded for the superior court to reevaluate this
second Michael J. factor under the correct standard and to determine
whether this reconsideration changes the balance of all the factors.

III. The Superior Court Did Not Abuse Its Discretion by Finding That
Terminating Father’s Parental Rights Was in the Children’s Best
Interests.

¶21 After weighing the Michael J. factors, a court must also
determine that termination is in the child’s best interests. Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 149, ¶ 8 (2018). To do so, the court must
determine that the child would either benefit from the termination or suffer
harm if termination is denied. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16
(2016). The factors to be considered in determining a child’s best interests
include: “(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 (App. 2010) (citations omitted).

¶22 Again, although this Court is remanding this case for findings
regarding the grounds for termination, this Court discusses the children’s
best interests in this situation for the superior court’s guidance. See
Woodward v. Woodward, 117 Ariz. 148, 150 (App. 1977). Here, Aunt plans to
adopt the children, two of the children have special mental or physical
needs that Aunt and her husband can meet, and adoption would provide
the children with stability. This Court finds no abuse of discretion in the
superior court’s determination that termination is in the children’s best
interests.

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CONCLUSION

¶23 For the reasons above, the termination ruling is vacated, and
this case is remanded to the superior court for findings regarding the
second Michael J. factor and a re-balancing of all the factors considering
those additional findings.

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

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