In Re Term of Parental Rights as to E.M. and D.M.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE TERMINATION OF PARENTAL RIGHTS AS TO E.M. and D.M.,
JR.

No. 1 CA-JV 24-0153
FILED 04-16-2026

Appeal from the Superior Court in Maricopa County
No. JD534278
The Honorable Joshua D. Rogers, Judge

AFFIRMED

COUNSEL

Maricopa County Office of the Public Advocate, Mesa
By Seth Draper
Counsel for Appellant Donald P.

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety

Maricopa County Office of the Legal Advocate, Phoenix
By Amanda Adams
Counsel for Appellees E.M. and D.M., Jr.

OPINION

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in
which Judge Samuel A. Thumma and Judge Angela K. Paton joined, and
Judge Samuel A. Thumma specially concurred.
 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Opinion of the Court

C A T T A N I, Judge:

¶1 Donald P. (“Father”) appeals an order terminating his
parental rights as to two of his children, E.M. and D.M. (collectively,
“Children”), on the length-of-felony-sentence statutory ground.1 See A.R.S.
§ 8-533(B)(4). This opinion addresses how to assess “the degree to which
the parent–child relationship can be continued and nurtured during the
incarceration,” the second of six non-exclusive factors relevant to whether
a parent’s imprisonment will deprive the child of a “normal home” as
necessary to support termination on this statutory ground. See Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251–52, ¶ 29 (2000). To avoid
rendering this second Michael J. factor “self-fulfilling,” see Jessie D. v. Dep’t
of Child Safety, 251 Ariz. 574, 581, ¶ 17 (2021), as discussed below, the
superior court must address something beyond the limitations inherent in
imprisonment and instead render an individualized determination of
whether and how the parental relationship can—or cannot—be maintained
despite those limitations.

¶2 Consistent with a concession of error by the Arizona
Department of Child Safety (“DCS”), we suspended this appeal and
revested jurisdiction in the superior court for clarified findings regarding
the degree to which Father’s relationship with Children can be continued
and nurtured while he remains incarcerated. Having considered the
clarified findings, along with supplemental briefing, we now affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 E.M. and D.M. were born in 2016 and 2018, respectively. In
2019, Father was arrested on various felony charges. He pleaded guilty to
three nonviolent felony offenses in 2021 and was sentenced to a total term
of 11 years in prison. Father’s anticipated release date is in 2028.

¶4 In September 2021, a few months after Father’s sentencing,
DCS removed Children and their siblings from Mother’s home due to
concerns of substance abuse and neglect. Father, who remained in prison,
did not contest the allegations of DCS’s resulting dependency petition, and
the court found Children dependent as to him.

1 Cynthia M. (“Mother”)’s parental rights as to Children have also
been terminated, but she is not a party to this appeal. Father’s older
children were subject to the dependency but are not parties to this appeal.

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Opinion of the Court

¶5 DCS records reflect that Father actively engaged in the case
and communicated with DCS throughout, and that he completed programs
offered in prison to improve his parenting capabilities. Father likewise had
positive, established relationships with Children, notwithstanding that
they were quite young when he was taken into custody and he has been
incarcerated ever since. Father consistently asked for visitation, and
although DCS had some difficulty coordinating visits through the
Department of Corrections, Father ultimately received—and consistently
participated in—weekly virtual visits and monthly in-person visits.

¶6 After the dependency had been pending for two and a half
years, DCS moved to terminate Father’s parental rights on the length-of-
felony-sentence statutory ground. See A.R.S. § 8-533(B)(4). Father waived
his right to trial on termination and did not contest the allegations of DCS’s
motion. See Ariz. R.P. Juv. Ct. 353(e). The DCS case manager then testified
that Father’s 11-year felony prison sentence spanning the bulk of Children’s
minority created significant barriers to providing for their basic needs.
Although Father had an established relationship with Children before his
incarceration and continued to seek out and engage in visitation, Father’s
prison sentence left Children without a normal home life because Mother’s
parental rights were terminated at the same time and guardianship was not
a practical alternative.

¶7 Finding that Father’s felony prison sentence was of such
length that Children would be deprived of a normal home for a period of
years and that termination would be in Children’s best interests, the
superior court terminated Father’s parental rights. Father timely appealed.

¶8 After considering Father’s argument that the superior court
misapplied the second Michael J. factor and DCS’s concession of error on
that point, we suspended the appeal and revested jurisdiction in the
superior court to clarify its finding on “the degree to which the parent–child
relationship can be continued and nurtured during the incarceration” and
enter an amended ruling on termination. See 196 Ariz. at 251–52, ¶ 29; see
also Ariz. R.P. Juv. Ct. 608(b)(4). The superior court reassessed the second
Michael J. factor and found that Father’s established relationship with
Children could, in fact, be maintained and nurtured through visitation
despite the limitations occasioned by his incarceration. The court
nevertheless found termination to be appropriate, reasoning that the other
Michael J. factors underscored how Father’s incarceration would leave
Children without a normal home for an extended period. The court
specifically found that no other parent or potential permanent guardian
was available to give Children a normal home life.

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Opinion of the Court

¶9 We reinstated the appeal and received supplemental briefing
addressing the superior court’s amended ruling. We have jurisdiction
under A.R.S. § 8-235(A).

DISCUSSION

¶10 The superior court may terminate a parent–child relationship
if clear and convincing evidence establishes at least one statutory ground
for termination and a preponderance of the evidence shows termination to
be in the child’s best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22 (2005). On review, we accept the superior court’s factual
findings if supported by reasonable evidence, giving due regard to that
court’s unique ability to weigh the evidence and assess witness credibility.
Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 478, ¶ 30 (2023). We uphold
the court’s legal conclusions unless they are clearly erroneous. Id. at 478–
79, ¶ 31.

¶11 When a parent knowingly, intelligently, and voluntarily
waives the right to trial on termination and does not contest the allegations
of the termination motion, however, our review is limited to the issues
contemplated by the waiver procedure itself. See Tina T. v. Dep’t of Child
Safety, 236 Ariz. 295, 298, ¶ 14 (App. 2014); see also Ariz. R.P. Juv. Ct. 353(e).
These considerations include the existence of a factual basis for termination
and adequacy of the required factual findings supporting termination. See
Tina T., 236 Ariz. at 298, ¶ 14; see also Ariz. R.P. Juv. Ct. 353(e)(3)–(4),
(h)(2)(A) (requiring “specific findings of fact in support of the termination
of parental rights”); A.R.S. § 8-538(A) (requiring a termination order to “be
in writing” and to “recite the findings on which the order is based”).

I. Length-of-Felony-Sentence Termination Ground.

¶12 The statutory ground at issue here—length of felony
sentence—authorizes termination of parental rights if an incarcerated
parent’s felony 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). A “normal
home” in this context means “a stable and 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 rather than detracts from the child’s stable, family environment.”
Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 477, ¶ 27 (2022).

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Opinion of the Court

¶13 In assessing deprivation of a normal home, the court should
consider all relevant factors, including:

(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).

¶14 In substance, Father challenges the superior court’s findings
and application of the second and fifth Michael J. factors.2

A. The Second Michael J. Factor: Degree to Which the Parent–
Child Relationship Can Be Continued and Nurtured
During the Incarceration.

¶15 Father asserts that, in the original termination ruling, the
court misapplied the second Michael J. factor by focusing solely on the
limitations of prison visitation and lack of traditional types of parent–child
contact, rather than considering the degree to which Father’s relationship
with Children could nevertheless be nurtured. DCS concedes error in this
regard, and we agree. Although the superior court has since corrected this
error, we address it here to provide guidance in future cases.

¶16 As our supreme court has explained, the second Michael J.
factor cannot be applied in a way that “renders it self-fulfilling” by
“impl[ying] that incarcerated parents could never adequately maintain a
parent–child relationship with their young children.” Jessie D. v. Dep’t of
Child Safety, 251 Ariz. 574, 581, ¶ 17 (2021). That is, the second factor must
address something beyond the limitations common to all incarcerated
individuals, limitations like the fact that an incarcerated parent would
necessarily be “unable to interact with the children in more traditional
settings (i.e., home, school, and recreational).” Id. at ¶ 16. Instead, the
pertinent inquiry considers the parent’s specific circumstances to assess

2 Apart from contesting the superior court’s consideration of the
possibility of guardianship, an argument that fails, see infra ¶¶ 26–28, Father
does not challenge the court’s best-interests findings.

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Opinion of the Court

“‘how and whether’ a parental relationship can be maintained” and the
parent–child bond nurtured “in other ways, such as through visits, phone
calls, letters, pictures, and gifts.” Id. at ¶¶ 16–17 (citation omitted).

¶17 The superior court’s original findings (which adopted
language submitted by DCS) fell short of this mark in two ways.

¶18 First, the court focused on “the visitation restrictions of [the
Department of Corrections],” which it found “only permitted short
visitations and phone calls” and thus provided “minimal” opportunity to
maintain the parent–child relationship. But the limitations imposed by
Department of Corrections policies cannot, alone, answer the second
Michael J. factor. If they did (as DCS concedes), no parent incarcerated in
Arizona (and thus subject to these limitations) could ever adequately
maintain a parent–child relationship, which would render this factor
impermissibly self-fulfilling. See id. at ¶ 17.

¶19 Such restrictions are not irrelevant—they have an obvious
and direct bearing on parent–child contact and thus on the feasibility of
maintaining the parent–child relationship. But they must be considered as
part of an individualized determination that takes into account the
incarcerated parent’s specific circumstances, not in isolation. See id. at ¶ 17;
Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 451, ¶ 17 (App. 2007)
(considering, inter alia, lack of individuals who could facilitate visitation
within Department of Corrections strictures).

¶20 Second, in the original ruling, the superior court found that
“Father is unable to perform normal parental duties such as providing food,
shelter, clothing, supervision, education, and medical care for the children.”
This finding focused squarely on Father’s inability “to parent in the
conventional manner” or “interact with the children in more traditional
settings”—precisely the self-fulfilling and thus insufficient considerations
described in Jessie D., 251 Ariz. at 581, ¶¶ 16–17. Instead of focusing
exclusively on those parental roles that are denied to an incarcerated parent,
the court must instead assess whether or how the relationship could be
maintained through other means. See id.

¶21 Father did not contest the termination motion, but the court
was nevertheless obligated to “make specific findings of fact in support of
the termination.” Ariz. R.P. Juv. Ct. 353(e)(4), (h)(2)(A). And the findings
in the original termination ruling reflected a misapplication of the second
Michael J. factor as described above. See supra ¶¶ 16–19.

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Opinion of the Court

¶22 After this court suspended the appeal, the superior court
reassessed the second Michael J. factor, considered Father’s specific
circumstances, and found that his established parental relationship could
be maintained and nurtured through visitation despite the prison’s
visitation restrictions. This individual-focused determination, which
considered but did not rest solely on the limitations occasioned by
incarceration, correctly applied the second Michael J. factor in a manner that
did not convert the fact of incarceration itself into a self-fulfilling basis for
termination. See Jessie D., 251 Ariz. at 581, ¶ 17. Although the superior court
nevertheless found termination to be warranted, Father does not now
challenge the amended termination ruling on this basis, and we discern no
further error in this regard.

¶23 Next, Father argues that the superior court erred by failing to
make express factual findings or state legal conclusions regarding the
adequacy of DCS’s reunification efforts. Although § 8-833(B)(4) does not
mention reunification services, the Arizona Supreme Court has recognized
that DCS remains obligated to make reasonable efforts to provide
reunification services, such as visitation, if requested by the incarcerated
parent and if providing the services will not endanger the child. Jessie D.,
251 Ariz. at 581–82, ¶¶ 18, 21. The second Michael J. factor necessarily
includes consideration of such reunification services to the extent they bear
on the parent’s ability to maintain a parent–child relationship while
incarcerated. See id. at 582, ¶ 21.

¶24 Here, although the superior court did not expressly mention
reunification services, this is one of several considerations relevant to the
second Michael J. factor. See id. at 581–82, ¶¶ 16–17, 21. And although the
superior court must make “at least one sufficiently specific finding to
support each . . . conclusion[] of law,” it need not recite all relevant facts
underlying its analysis in order to resolve disputed issues. Logan B. v. Dep’t
of Child Safety, 244 Ariz. 532, 537, ¶ 15 (App. 2018) (citation omitted). Father
did not contest the termination motion, leaving no “disputed” issues in a
meaningful sense. Moreover, visitation (which the court expressly
addressed) was the core service at issue, and the record is replete with
evidence of DCS’s efforts to facilitate visitation. Cf. Tina T., 236 Ariz. at 299,
¶ 16 (reciting standard for factual basis). Accordingly, Father has not
shown error.

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Opinion of the Court

B. The Fifth Michael J. Factor: Availability of Another Parent
to Provide a Normal Home Life.

¶25 Finally, Father challenges the superior court’s assessment of
the fifth Michael J. factor, asserting that the court failed to meaningfully
consider the possibility of a guardianship rather than termination. He
argues that even the amended termination ruling focused too narrowly on
unavailability of placement with a relative without addressing the
possibility that Children’s foster placements might pursue a permanent
guardianship.

¶26 The fifth Michael J. factor, which addresses “availability of
another parent to provide a normal home life,” also includes consideration
of the availability of a permanent guardian to provide a normal home life
in the absence of another parent. Timothy B., 252 Ariz. at 477, ¶ 27. The
court thus should consider “whether another person is willing to be the
child’s permanent guardian,” and if so, whether grounds for a permanent
guardianship exist. Id.

¶27 Here, the court found that no potential permanent guardian
was available, expressly considering relatives as well as Children’s foster
placements. Although Father disputes the reasons that guardianship was
not a viable alternative, the only evidence was that no guardian was
available; there was no evidence to the contrary. Given the existence of this
factual basis, see Tina T., 236 Ariz. at 299, ¶ 16, Father has not shown error.

¶28 Accordingly, given an adequate factual basis for termination
and adequate factual findings based on the appropriate legal framework,
we affirm the superior court’s amended termination ruling.

CONCLUSION

¶29 We affirm.

T H U M M A, Judge, Specially Concurring:

¶30 I join the opinion fully, and without reservation. I write
separately to question the continuing wisdom of Arizona law allowing a
parent, who has knowingly, voluntarily and intelligently waived his or her
right to contest a motion or petition to terminate parental rights, to then
appeal from the resulting termination order.

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Thumma, J., specially concurring

¶31 There was a time when children languished in foster care for
years and years. Thirty years ago, in some states, on average a “child
removed from the home because of family problems spen[t] almost three
years in foster care.” H.R. Rep. No. 105-77, at 8 (1997). In an attempt to
significantly shorten that time, Congress enacted the Adoption and Safe
Families Act of 1997 (ASFA). See Pub. L. No. 105-89, 111 Stat. 2115. “ASFA
mandates that states implement procedures designed to expedite
permanent placement for children in foster care.” Rita J. v. Ariz. Dept. of
Econ. Sec., 196 Ariz. 512, 514 ¶ 5 (App. 2000) (citation omitted). The Arizona
Legislature then passed legislation to comply with ASFA’s directive to
“secur[e] permanent placement of children in foster care within twelve
months of their temporary placement.” Id. (citations omitted).

¶32 As a result, a juvenile court must “hold a permanency hearing
to determine the future permanent legal status of” a child in care within: (1)
six months after removal for a child under three years of age or (2) twelve
months after removal otherwise. A.R.S. § 8-862(A); accord Ariz. R. Juv. Ct.
P. 343(a) & (b).3 These and other ASFA-driven requirements of Arizona law
are designed to further “the primary purpose of ASFA [and Arizona law]:
expediting the process of finding permanent placement for children.” Rita
J., 196 Ariz. at 515 ¶ 10 (citations omitted).

¶33 When facing a motion or petition to terminate parental rights,
a parent has a right to contest the allegations and demand an evidentiary
adjudication, or the parent may admit or elect to not contest the allegations.
See Ariz. R.P. Juv. Ct. 353(e). Here, at the termination adjudication hearing,
Father waived his right to trial by deciding not to contest the allegations in
the motion to terminate. See Ariz. R.P. Juv. Ct. 353(e); see also Ariz. R.P. Juv.
Ct. 352(c)(6) (applicable to initial termination hearings).4 When a parent
admits or does not contest termination, the court asks the parent various
questions to ensure that the decision is made knowingly, intelligently and
voluntarily. See Ariz. R.P. Juv. Ct. 353(e). If so, the court makes appropriate
findings and, if the party seeking termination meets its burden of proof, the
court can enter an order terminating parental rights. Ariz. R.P. Juv. Ct.
353(e) & (h). However, notwithstanding the parent’s waiver, and the ASFA
and Arizona law directives to avoid delay, the parent who waived can still

3 A third option, which applies infrequently, requires the permanency
hearing to be held “[w]ithin thirty days after the disposition hearing if the
court does not order reunification services.” A.R.S. § 8-862(A)(1).
4 Similar procedures apply when a “permanent guardianship” is sought.

See Ariz. R.P. Juv. Ct. 345(c)(7); 346(d).

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Thumma, J., specially concurring

appeal from the resulting order terminating that parent’s rights. That is
precisely what happened here.

¶34 In this case, E.M. and D.M. (about 10 and eight years old
respectively) have been in care for nearly four and a half years, about half
their lives. In June 2024, after a lengthy exchange with the court, Father
made the difficult decision to not contest the termination allegations. In
doing so, he stated “[t]he most important thing to me is my kids,” adding
he did not “want to prolong this anymore than it has to.” The court found
Father “knowingly, voluntarily, and intelligently waived his right to
contest the allegations in the termination motion” and, after receiving
evidence, terminated Father’s parental rights. Father then appealed that
termination order, as is his right under current Arizona law. Given that
appeal, which prevents final placement for the children, this opinion
affirming the termination will issue about 21 months after the June 2024
termination order. That 21-month delay, I submit, runs counter to the
expedited permanent placement directive in ASFA and Arizona law. See
Rita J., 196 Ariz. at 515 ¶ 10.

¶35 Contrast this with a guilty plea in a criminal case. When a
criminal defendant wants to plead guilty to an offense, the court asks the
defendant various questions to ensure that the guilty plea is made
knowingly, intelligently and voluntarily. See Ariz. R. Crim. P. 17.1(b), 17.2,
17.3, 17.4. If so, and if facts are presented supporting the guilty plea, the
court may accept it. See Ariz. R. Crim. P. 17.3(b). If the guilty plea is
accepted, the criminal defendant who pled guilty waives any right to
appeal. Ariz. R. Crim. P. 17.1(e).

¶36 It seems strange that a parent’s waiver in a termination
proceeding does not include waiving an appeal from the resulting
termination order, thereby delaying permanency directed by ASFA and
Arizona law by months or years, while a criminal defendant pleading guilty
waives any right to appeal. This is particularly true given that a defendant
pleading guilty in a criminal matter waives a constitutional “right to appeal
in all cases,” Ariz. Const. art. 2, § 24, while a parent’s waiver in a
termination proceeding leaves intact a statutory appeal, A.R.S. § 8-235(A).

¶37 It may be that the ability of a waiving parent to appeal from a
resulting termination order is a relic from pre-ASFA days, when children
were allowed to languish in foster care. Given the ASFA-driven
requirements of Arizona law today, it would seem that those days are gone.
If a criminal defendant waives a constitutional right to appeal by pleading
guilty, it would seem proper for a parent waiving a right to contest

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.M. and D.M.
Thumma, J., specially concurring

termination of parental rights to waive a statutory right to appeal in an
effort to “expedit[e] the process of finding permanent placement for
children.” Rita J., 196 Ariz. at 515 ¶ 10 (citation omitted).

¶38 I join the opinion fully, and without reservation. For these
reasons, I separately concur to question the wisdom of Arizona law
continuing to allow a parent, who has knowingly, voluntarily and
intelligently waived his or her right to contest a motion or petition to
terminate parental rights, to then appeal from the resulting termination
order.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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