In Re Term of Parental Rights as to X.M.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 25-0028

FILED 11-06-2025

Appeal from the Superior Court in Maricopa County
No. JD29600
The Honorable Glenn A. Allen, Judge

AFFIRMED

COUNSEL

David W. Bell, Mesa
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Yu-Shan “Sunny” Kuo
Counsel for Appellee Department of Child Safety

Law Office of Ed Johnson, Peoria
By Edward D. Johnson
Counsel for Appellee X.M.

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Vice Chief Judge David D. Weinzweig and Judge Cynthia J. Bailey
joined.
 IN RE TERMINATION OF PARENTAL RIGHTS AS TO X.M.
Decision of the Court

P E R K I N S, Judge:

¶1 Charlie B. (“Father”) appeals the juvenile court’s
order terminating his parental rights to Xander (a pseudonym). Mother is
not a party to this appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father has been incarcerated in Yuma since August 2023 for
disorderly conduct and misconduct involving weapons, his ninth and tenth
felony convictions. His anticipated release date is October 2026, followed
by a term of community supervision. Father is 45 years old and has spent a
total of 22 years in custody since turning 18. His longest period out of
custody was three years.

¶3 Father and Mother are not married and have one child in
common, Xander, who was born in February 2024. Xander’s umbilical cord
tested positive for numerous substances, including methamphetamines,
methadone, amphetamines, and fentanyl. Shortly after Xander’s birth,
Mother disappeared and the Department of Child Safety (“DCS”) took
Xander into custody. DCS initiated dependency proceedings and filed a
paternity suit against Father. Father has always maintained paternity of
Xander. In July 2024, the juvenile court found Xander dependent and
confirmed Father’s paternity.

¶4 DCS placed Xander with his maternal step-grandmother
(“Grandmother”) in Phoenix. Grandmother already adopted Mother’s
other child, Xander’s half-brother.

¶5 Due to Xander’s age and the distance between Phoenix and
Yuma, DCS and Father agreed to weekly video visitation in lieu of in-
person visitation. With some exceptions, video visits occurred weekly for
thirty minutes beginning in July 2024. Father sent presents and clothes to
Xander through Grandmother and Father’s sister.

¶6 Grandmother refused permanent guardianship because she
would rather adopt Xander, and Xander’s case plan was changed to
termination and adoption. In September 2024, Xander’s attorney moved to
terminate Father’s rights on the length-of-sentence ground and Mother’s
rights on the abandonment ground.

¶7 Mother’s rights were terminated in January 2025. After a
contested termination hearing, the juvenile court terminated Father’s rights

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in February 2025. Father appealed the termination order, and we have
jurisdiction. See A.R.S. §§ 8-235, 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶8 When reviewing a termination order, we will accept the
court’s factual findings when they are supported by reasonable evidence
and inferences. Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 478, ¶ 30
(2023). “Because the juvenile court is in the best position to weigh evidence
and assess witness credibility,” we view the evidence in the light most
favorable to sustaining the juvenile court’s decision. Id. at 478–79, ¶¶ 30, 32
(cleaned up).

¶9 To terminate the parent-child relationship, the court must
find (1) parental unfitness based on at least one statutory ground under
Arizona Revised Statutes Section 8-533(B) by clear and convincing
evidence, and (2) termination is in the child’s best interests by a
preponderance of the evidence. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
149–50, ¶ 8 (2018).

I. Statutory Ground

¶10 We review the juvenile court’s legal conclusions regarding the
statutory ground for clear error. Brionna J., 255 Ariz. at 478–79, ¶ 31.

¶11 A parent’s rights over his child may be terminated under the
length-of-sentence ground “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).

¶12 The statute provides no definition for “normal home” or
“period of years,” but our supreme court has described “the inquiry [as]
individualized and fact specific,” Jessie D. v. Dep’t of Child Safety, 251 Ariz.
574, 579, ¶ 9 (2021) (cleaned up), and has articulated six non-exclusive
factors:

(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

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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
lack of evidence on one or several of [these] factors may or may not require
reversal or remand on a severance order.” Christy C. v. Ariz. Dep’t of Econ.
Sec., 214 Ariz. 445, 450, ¶ 15 (App. 2007).

¶13 The juvenile court made findings specific to each factor, but
Father only challenges the juvenile court’s finding on the second factor. The
juvenile court found that no meaningful relationship could be created or
maintained under these circumstances because there was no prior
relationship, Xander was too young to communicate effectively, and Father
will have had “virtually zero” time to bond with the child during these
formative years. Father argues he can nurture a relationship through the
current video visitation schedule because Xander’s cognitive development
is improving, and future in-person visitation should be allowed because
Xander is now over one year old.

¶14 We note that the circumstances the juvenile court relied on
here will be present for every parent whose child is born during his
incarceration. And the record shows Father has nurtured his bond with
Xander to the extent possible. He has attended weekly video visits, sent
over gifts, and the DCS caseworker testified that Father is bonded with
Xander. Even if Father is correct that this factor weighs against termination,
reversal is not warranted in light of the remaining factors.

¶15 Father has not challenged the other Michael J. factors.
Generally, a party waives issues not raised on appeal. Crystal E. v. Dep’t of
Child Safety, 241 Ariz. 576, 577–78, ¶ 5 (App. 2017). But waiver is
discretionary, not “an unalterable rule.” Reid v. Reid, 222 Ariz. 204, 208, ¶ 16
(App. 2009). We consider each remaining factor in turn.

¶16 Regarding the extent of a pre-existing relationship, Xander
was born six months into Father’s term of incarceration. There was thus no
relationship before Father’s incarceration. The first factor favors
termination.

¶17 The juvenile court found, and the record supports, that
“Father has missed, and will continue to miss, a good portion of the child’s
formative years.” Father has been physically absent for Xander’s entire life.
By the time Father is released, Xander will be almost three years old and

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will never have lived with Father during that significant developmental
period. Father cannot provide Xander with a normal home through weekly
virtual visits. Even after his release, Father will be under community
supervision and require significant services, further impairing his ability to
provide a normal home. The third factor favors termination.

¶18 The fourth factor requires courts to consider the “total length
of time the parent is absent from the family,” not just the period of
incarceration. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 281, ¶ 8 (App.
2002). This includes conditions of release and time “needed to complete
parenting classes, counseling, and other services.” Jeffrey P. v. Dep’t of Child
Safety, 239 Ariz. 212, 214, ¶ 10 (App. 2016). Once released, Father must
complete community supervision, obtain stable housing, and find
employment before reunifying with Xander. While Father believed he
could achieve these goals in a matter of months, the court noted this
estimate was “admirable, [but] not realistic.” That finding is supported by
the record considering Father’s long criminal history. The fourth factor
favors termination.

¶19 As for the availability of another parent, Mother’s rights were
terminated, Grandmother will not serve as Xander’s permanent guardian,
and Father has identified no one willing to fill those shoes. The fifth factor
favors termination.

¶20 Finally, Xander has been without a parental presence for his
entire life and will continue to be without one until some point in time after
Father’s release from incarceration. The sixth factor favors termination.

¶21 “In some instances, a 20-year sentence might not provide
sufficient basis for severing an incarcerated parent’s rights, while in another
case a 3-year sentence could provide the needed basis.” Michael J., 196 Ariz.
at 251, ¶ 29. We recognize Father’s efforts to be involved in his son’s life.
But reasonable evidence supports the court’s findings on the other Michael
J. factors, all of which support termination. The court did not err in
concluding statutory grounds exist to support termination based on
Father’s incarceration.

II. Best Interests

¶22 We view “the record in the light most favorable to upholding
the court’s best-interests finding,” Alma S., 245 Ariz. at 152, ¶ 21, and will
“accept the juvenile court’s findings of fact if reasonable evidence and
inferences support them.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9
(2016). “Termination is in the child’s best interests if either: (1) the child will

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benefit from severance; or (2) the child will be harmed if severance is
denied.” Alma S., 245 Ariz. at 150, ¶ 13 (cleaned up).

¶23 Father contends the court abused its discretion by finding
termination was in Xander’s best interests. He argues that because the court
erred on the second Michael J. factor, it could not have properly evaluated
Xander’s best interests.

¶24 The court found termination would benefit Xander because it
would allow him to be adopted by Grandmother. A child’s prospective
adoption can support a court’s best-interests finding. Demetrius L., 239 Ariz.
at 4, ¶ 16. The adoption would provide Xander with a safe and stable home
where he could permanently live with his half-brother. The record thus
supports the juvenile court’s finding that termination was in Xander’s best
interests.

CONCLUSION

¶25 We affirm.

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

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