Jessie D. v. dcs/f v. m.D./m.D./c.D.

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

JESSIE D.,
Appellant,

v.

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

No. CV-19-0321-PR
Filed October 8, 2021

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

Memorandum Decision of the Court of Appeals, Division One
No. 1 CA-JV 19-0073
Filed November 14, 2019
AFFIRMED

COUNSEL:

Thomas A. Vierling (argued), Vierling Law Offices, Phoenix, Attorney for
Jessie D.

Mark Brnovich, Arizona Attorney General, Drew C. Ensign, Section Chief
Counsel, Civil Appeals Section, Dawn R. Williams (argued), Toni M.
Valadez, Sandra L. Nahigian, Assistant Attorneys General, Phoenix,
Attorneys for Department of Child Safety
 JESSIE D. V. DCS, et al.
Opinion of the Court

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICE LOPEZ,
and JUDGE STARING * joined. ** JUSTICE BOLICK concurred in part and in
the judgment.

JUSTICE BEENE, Opinion of the Court:

¶1 Under A.R.S. § 8-533(B)(4), a court may terminate a parent-
child relationship if the parent is convicted of a felony and the resulting
prison sentence “is of such length that the child will be deprived of a normal
home for a period of years.” In Michael J. v. Arizona Department of Economic
Security, 196 Ariz. 246, 251–52 ¶ 29 (2000), we set forth the relevant factors
a juvenile court should consider in making this determination. Those
factors 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
provide a normal home life, and (6) the effect of the
deprivation of a parental presence on the child at issue.

∗ Justice William G. Montgomery has recused himself from this
case. Pursuant to article 6, section 3 of the Arizona Constitution, the
Honorable Christopher P. Staring, Judge of the Arizona Court of Appeals,
Division Two, was designated to sit in this matter.

** Although Justice Andrew W. Gould (Ret.) participated in the
oral argument in this case, he retired before issuance of this Opinion and
did not take part in its drafting.
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Opinion of the Court

Id. These have come to be known as the “Michael J. factors.”

¶2 Although the juvenile court misapplied two Michael J. factors
in this case, substantial evidence exists to support termination.
Accordingly, we affirm the court’s order terminating the parent-child
relationship.

BACKGROUND

¶3 Jessie D. (“Father”) and Joana V. (“Mother”) had four children
together. In August 2016, while Father was living with Mother and the
children, their house caught fire, and they became homeless. Mother and
the children moved into a homeless shelter, but Father was not permitted
to live there due to an outstanding warrant. In December, Father was
arrested, and in July 2017, he was convicted of two counts of aggravated
driving under the influence and sentenced to seven years’ incarceration
with a maximum release date of December 2022. At the time of his
incarceration, the children ranged in age from 1.5 to 7 years old.

¶4 In August 2017, the Department of Child Safety (“DCS”)
removed the children from Mother’s care because of homelessness,
domestic violence, and substance-abuse issues. A month later, the court
found the children dependent as to Father.

¶5 In June 2018, DCS moved to terminate Father’s parental rights
to the children under § 8-533(B)(4). 1 The juvenile court held a termination
hearing in November, during which the DCS case manager and Father
testified. Following the hearing, the court found by clear and convincing
evidence that Father’s sentence was of sufficient length to deprive the
children of a normal home for a period of 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 juvenile court terminated Father’s rights to the children.

1 Mother’s parental rights have been terminated and she is not a
party to this appeal.
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Opinion of the Court

¶6 Father appealed. The court of appeals affirmed the juvenile
court’s termination. Jessie D. v. Dep’t of Child Safety, No. 1 CA-JV 19-0073,
2019 WL 6003238, at *1 ¶ 1 (Ariz. App. Nov. 14, 2019) (mem. decision). In
conducting its review, the court of appeals analyzed the juvenile court’s
application of the Michael J. factors. Id. at *2–3 ¶¶ 6–16. It found that
reasonable evidence supported each finding and concluded that the court
did not abuse its discretion in evaluating the factors. Id. at *3 ¶ 14. The
court also concluded that reasonable evidence supported the juvenile
court’s finding that severance was in the children’s best interests. Id. at ¶ 19.

¶7 We granted review on the following issues: (1) whether
substantial evidence exists in the record to support the juvenile court’s
finding that Father’s conviction and length of sentence of imprisonment
was of such a length as to deprive the children of a normal home for a
period of years, and (2) whether substantial evidence exists in the record to
support the juvenile court’s finding that termination of Father’s parental
rights would be in the children’s best interests. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶8 Parents enjoy a fundamental liberty interest in “the care,
custody, and management” of their children. Santosky v. Kramer, 455 U.S.
745, 753 (1982). But this right is not inalienable. See, e.g., In re Appeal in
Maricopa Cnty. Juv. Action No. JD-561, 131 Ariz. 25, 27–28 (1981) (“The state
has a vital interest in the status of the parent-child relationship and, because
of the importance of this interest, the state may intrude into the parent-child
relationship to protect the welfare of the child and the state’s own interest
in the welfare of its citizens.”). A court may terminate “parental rights
under certain circumstances, so long as the parents whose rights are to be
severed are provided with ‘fundamentally fair procedures’ that satisfy due
process requirements.” Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 24 (2005)
(quoting Santosky, 455 U.S. at 754). “Arizona’s severance statute satisfies
due process because the statutory grounds are ‘synonymous with parental
unfitness.’” Jessica P. v. Dep’t of Child Safety, 249 Ariz. 461, 470 ¶ 31 (App.
2020) (quoting Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 9 (2018)),
vacated on other grounds by Jessica P. v. Dep’t of Child Safety, CV-20-0241-PR,
2020 WL 8766053, at *1 (Ariz. Dec. 15, 2020). In Arizona, ”[t]o justify
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Opinion of the Court

termination of the parent-child relationship, the [juvenile] court must find,
by clear and convincing evidence, at least one of the statutory grounds set
out in section 8-533, and also that termination is in the best interest of the
child.” Michael J., 196 Ariz. at 249 ¶ 12.

¶9 As previously indicated, under § 8-533(B)(4), a juvenile court
may terminate the parent-child relationship if the parent is convicted of a
felony and “the sentence of that parent is of such length that the child will
be deprived of a normal home for a period of years.” “The ‘normal home’
. . . relates to [Father’s] obligation to provide a normal home, a home in
which the . . . father has a presence, and it does not refer to a ‘normal home’
environment created by [others].” In re Appeal in Maricopa Cnty. Juv. Action
No. JS-5609, 149 Ariz. 573, 575 (App. 1986). There is “no ‘bright line’
definition of when a sentence is sufficiently long to deprive a child of a
normal home for a period of years.” Michael J., 196 Ariz. at 251 ¶ 29. Rather,
the inquiry is individualized and fact specific. The juvenile court must
consider “all relevant factors,” including the previously mentioned Michael
J. factors. Id. at 251–52 ¶ 29. Termination, however, may be appropriate
even if some of the Michael J. factors do not support the severance of
parental rights. Indeed, “[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.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 450 ¶ 15 (App.
2007).

¶10 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. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8
(App. 2004). “Because the juvenile court is in the best position to weigh
evidence and assess witness credibility, we accept the juvenile court’s
findings of fact if reasonable evidence and inferences support them, and
will affirm a severance order unless it is clearly erroneous.” Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 3 ¶ 9 (2016). However, “we review de novo legal
issues requiring the interpretation and application of § 8-533.” Ariz. Dep’t
of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440 ¶ 12 (App. 2014).

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Opinion of the Court

I.

¶11 The first Michael J. factor requires a juvenile court to consider
“the length and strength of any parent-child relationship existing when
incarceration begins.” Michael J., 196 Ariz. at 251–52 ¶ 29. When
considering the temporal aspect of this factor, the court should take into
account the time the parent and child had spent together before
incarceration. Additionally, when evaluating the stability of the parent-
child relationship, 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.

¶12 Here, the juvenile court found that the evidence regarding
this factor was “limited and conflicting,” but concluded that “the
relationship was not particularly strong.” The court based its decision on
the following evidence: (1) Father did not live with the children before his
incarceration; (2) Father’s description of his relationship with the children
before he was incarcerated—taking them to the park, building things with
them, and teaching them to draw—suggested that Father was not the
“primary caretaker” for the children; (3) Father was absent for a large
portion of the lives of two of his children because of incarceration; and
(4) the children’s apparent lack of interest in their Father since being placed
in DCS’s care. While we agree with the juvenile court that the evidence
regarding this factor was “limited and conflicting”—particularly based on
the differing testimony regarding the parent-child bond from Father and
the DCS case manager—we conclude that the court misapplied this Michael
J. factor.

¶13 Although the juvenile court considered the amount of time
Father spent with the children before his incarceration and discussed the
strength of their relationship, it reasoned that the first Michael J. factor was
not established because Father “was not a primary caretaker for these
children.” Michael J. does not mandate, and we have never held, that the
length and strength of the parent-child relationship hinges on a parent’s
“primary caretaker” status. A finding that a parent is not the “primary
caretaker” does not necessarily mean the parent did not also care for, or
establish a bond with, a child. Further, the court incorrectly faulted Father

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Opinion of the Court

for not “actually living with the children” when Father testified that he was
not permitted to stay in the homeless shelter with his family, so he slept
outside the shelter in his car. The court also wrongly faulted Father for
having six other children, which the court found limited Father’s time to
build relationships with the children at issue here. Parents with a large
number of children can still form bonds with those children. Because it is
not clear from the court’s order that it properly considered the length and
strength of the relationship between Father and the children, it misapplied
the first Michael J. factor.

¶14 The second Michael J. factor addresses “the degree to which
the parent-child relationship can be continued and nurtured during the
incarceration.” Id. at 252 ¶ 29. In addressing this factor, the juvenile court
should “consider not only the parent-child relationship at the time the
incarceration commences but also, how and whether that relationship may
be maintained during the incarceration.” Jeffrey P. v. Dep’t of Child Safety,
239 Ariz. 212, 215 ¶ 13 (App. 2016).

¶15 Here, the juvenile court found:

[T]he parent-child relationship cannot be meaningfully
continued while [F]ather is incarcerated. All four children are
very young. . . . The frequent, meaningful contact required
for a parent to build and maintain a bond is virtually, if not
completely, impossible in a prison setting. Father cannot
interact with the children in a home, school or recreational
setting. . . . He cannot observe them with friends or in a social
setting. He cannot reasonably parent.

¶16 We conclude that the juvenile court misapplied this Michael J.
factor. The focus of the court’s inquiry should be “how and whether” a
parental relationship can be maintained during Father’s incarceration. Id.
But the court concluded that the factor was not met because Father was
unable to interact with the children in more traditional settings (i.e., home,
school, and recreational). While the court is correct that Father will be
unable to parent in the conventional manner while incarcerated, its analysis
failed to address whether Father’s relationship with the children could be
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Opinion of the Court

maintained while he was in prison. For this reason, the juvenile court
misapplied the second Michael J. factor.

¶17 The juvenile court’s rationale and conclusion regarding this
factor renders it self-fulfilling and implies that incarcerated parents could
never adequately maintain a parent-child relationship with their young
children. This implication is contrary to law. As previously stated,
maintaining a relationship with one’s children while incarcerated would
undoubtedly be a difficult task, but an incarcerated parent can maintain a
bond with a child in other ways, such as through visits, phone calls, letters,
pictures, and gifts. See Michael J., 196 Ariz. at 251 ¶ 24. And it is crucial to
remember that parents’ right to the custody and control of their children is
fundamental and “does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State.”
Santosky, 455 U.S. at 753.

¶18 Although § 8-533(B)(4) does not impose an explicit duty on
DCS to provide reunification services, the absence of a statutory duty does
not obviate the state’s obligation to provide these services. Arizona courts
have previously recognized a requirement to engage in reunification efforts
“on constitutional grounds as a necessary element of any state attempt to
overcome . . . the ‘fundamental liberty interest of the natural parents in the
care, custody and management of their child.’” Mary Ellen C. v. Ariz. Dep’t
of Econ. Sec., 193 Ariz. 185, 192 ¶ 32 (App. 1999) (quoting Santosky, 455 U.S.
at 753). Providing reunification services is imperative in severance
proceedings because “[t]he combined effect of the fundamental character of
a parent’s right to his child and the severity and permanence of termination
dictates that the court sever the parent-child relationship only in the most
extraordinary circumstances, when all other efforts to preserve the relationship
have failed.” In re Appeal in Maricopa Cnty. Juv. Action No. JA 33794, 171 Ariz.
90, 91–92 (App. 1991) (emphasis added).

¶19 Here, the juvenile court correctly relied on existing precedent
when it concluded that DCS was not required to provide reunification
services to Father. See James H. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 1, 2 ¶ 6
(App. 2005). However, the rationale for denying incarcerated parents
reunification services as expressed in James H. is not persuasive. In that

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Opinion of the Court

case, the court of appeals concluded that in the “case of a lengthy prison
sentence . . . reunification efforts were not required because prolonged
incarceration is something neither [DCS] nor the parent could ameliorate
through reunification services.” Id. at 3 ¶ 9.

¶20 James H.’s categorical refusal to provide reunification services
to parents serving lengthy sentences is contrary to the well-settled axiom
that “severance of the parent-child relationship should be resorted to ‘only
when concerted effort to preserve the relationship fails.’” In re Appeal in
Maricopa Cnty. Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 189 (App.
1984) (quoting In re Appeal in Maricopa Cnty. Juv. Action No. S-111, 25 Ariz.
App. 380, 387 (1975), overruled on other grounds by In re Appeal in Yavapai
Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 14 (1984)). Because parents
incarcerated for a lengthy period still possess a fundamental liberty interest
in the care, custody, and management of their children, Troxel v. Granville, 530 U.S. 57, 65 (2000), DCS must make diligent efforts to preserve the family
by providing services to assist parents in maintaining a bond with their
children.

¶21 We are mindful that requiring DCS to provide reunification
services to an incarcerated parent is a departure from prior Arizona law,
although it is a constitutional requirement under Santosky. If DCS seeks to
terminate parental rights under § 8-533(B)(4)’s provision addressing the
parent’s length of felony sentence, and an incarcerated parent requests
reunification services, such as visitation, and providing the services will not
endanger the child, DCS must make reasonable efforts to provide these
services. DCS’s obligation to provide services to an incarcerated parent is
not without limits. It must, however, initiate measures designed to address
an incarcerated parent’s desire to maintain a parent-child relationship. At
bottom, incarceration does not automatically render a parent unfit and DCS
“has a responsibility to assist parents, incarcerated or not, who face
termination of their rights.” Michael J., 196 Ariz. at 253 ¶ 38 (Zlaket, C.J.,
concurring in part and dissenting in part).

¶22 The juvenile court correctly analyzed and applied the
remaining Michael J. factors. On the third factor—the age of the child and
the relationship between the child’s age and the likelihood that

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Opinion of the Court

incarceration will deprive the child of a normal home—reasonable evidence
supported the court’s conclusion that given the children’s ages, 1.5 to 7
years old, it was “virtually impossible to maintain anything approaching a
normal parent-child relationship.” On the fourth factor—length of
sentence—the court correctly considered the total length of Father’s
sentence, including time to complete parent aide services, and found that a
realistic reunification date would be “mid to late 2023 at the earliest.” This
finding was supported by exhibits and testimony taken during the hearing.
On the fifth factor—the availability of another parent to provide a normal
life—the court properly concluded that another parent is not available
because Mother’s rights had been terminated. On the sixth factor—the
effect of deprivation of a parental presence—the court appropriately found,
based on the testimony provided at the hearing, that the children would
“essentially be left adrift if Father’s rights are not severed.”

¶23 Although there was conflicting evidence offered at the
termination hearing, we do not reweigh the evidence because the court “is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec.
v. Oscar O., 209 Ariz. 332, 334 ¶ 4 (App. 2004). Father asserts that the
juvenile court abused its discretion in terminating his parental rights
because he was not afforded sufficient time to reunify with the children and
was not provided visitation services. The record belies this claim. Father
intermittently requested visitation with his children and the court directed
DCS to follow up on Father’s request, but he also stated at three separate
hearings that he had “no objection” to the court’s finding that DCS had
“offered, made referrals, provided, and/or requested” transportation and
visitation services for him and the children.

¶24 Notably, Father sent letters to the children and engaged in
phone calls that DCS’s psychologist determined were inappropriate based
on the substance of the conversations and the children’s undesirable
behaviors after communicating with Father. As a result, DCS determined
that providing Father’s letters to the children or allowing them to engage in
phone calls was not in their best interests. Although DCS should have
informed Father about its decision not to forward his letters or allow phone
calls with the children so he could have challenged this decision, or written

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Opinion of the Court

additional letters that did not discuss the topics DCS found inappropriate,
this omission did not affect the propriety of the court’s decision to sever
Father’s parental rights given the totality of the record.

¶25 Here, the juvenile court did not abuse its discretion in
determining that Father’s sentence was of such length to deprive the
children of a normal home for a period of years.

II.

¶26 Once the juvenile court finds by clear and convincing
evidence that a statutory ground for termination exists, the court must then
determine by a preponderance of the evidence whether severance is in the
child’s best interests. Alma S., 245 Ariz. at 149–50 ¶ 8. Here, Father contends
that there was “insufficient evidence” to support the court’s best-interests
finding. We disagree.

¶27 In a best-interests inquiry, “we can presume that the interests
of the parent and child diverge because the court has already found the
existence of one of the statutory grounds for termination by clear and
convincing evidence.” Id. at 150 ¶ 12 (quoting Kent K., 210 Ariz. at 286 ¶ 35).
Accordingly, after the court finds “that a parent is unfit, the focus shifts to
the interests of the child as distinct from those of the parent,” and the
“child’s interest in stability and security” becomes the court’s foremost
concern. Id. (first quoting Kent K., 210 Ariz. at 285 ¶ 31; and then quoting
Demetrius L., 239 Ariz. at 4 ¶ 15). Termination of a parent’s rights “is in the
child’s best interests if either: (1) the child will benefit from severance; or (2)
the child will be harmed if severance is denied.” Id. at ¶ 13. Among the
factors that the court may consider when making this determination are
whether: “1) an adoptive placement is immediately available; 2) the existing
placement is meeting the needs of the child[ren]; and 3) the children are
adoptable.” Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379 ¶ 30
(App. 2010) (internal citations omitted).

¶28 Here, the juvenile court found that the children were placed
with a family that is willing to adopt. Additionally, the court determined
that the children would benefit from termination because their adoption

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Opinion of the Court

would allow them to remain together in “a stable, loving environment, and
would be able to achieve permanency.” The court went on to conclude that
maintaining the parent-child relationship would be harmful to the children
because the length of Father’s imprisonment would impede the possibility
of maintaining a normal parent-child relationship.

¶29 Viewing the record in the light most favorable to upholding
the court’s best-interests finding, Demetrius L., 239 Ariz. at 2 ¶ 2, and
applying our deferential standard of review, id. at 3 ¶ 9, we conclude that
reasonable evidence supports the juvenile court’s best-interests finding.

CONCLUSION

¶30 Because reasonable evidence supports the juvenile court’s
findings, we affirm the court’s order terminating Father’s parental rights.

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JUSTICE BOLICK, concurring in part and in the judgment

BOLICK, J., concurring in part and in the judgment:
¶31 I cannot join the opinion in full as I disagree that Arizona’s
termination of parental rights statute, as applied by this Court’s rules and
opinions, satisfies due process requirements. Supra ¶ 8. To the contrary, it
falls far short, often depriving parents of their fundamental rights. See, e.g.,
Trisha A. v. Dep’t of Child Safety, 247 Ariz. 84, 92–95 ¶¶ 33–48, 100 ¶ 73 (2019)
(Bolick, J., dissenting) (“[T]he process our state has constructed creates the
very real prospect that parents will lose their children not because they
deserve to, but because they are unable to effectively defend their rights in
a system that is stacked hopelessly against them.”); Alma S., 245 Ariz. at
154–55 ¶¶ 30–36 (Bolick, J., concurring in the result); Brenda D. v. Dep’t of
Child Safety, 243 Ariz. 437, 450 ¶ 48 (2018) (Timmer, J., dissenting in part and
concurring in part); Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53, 59 ¶ 33
(2017) (Eckerstrom, J., dissenting).

¶32 The outcome in this case is harsh but not unwarranted. The
father strove mightily to preserve a relationship with his children, even
apparently sleeping in his car outside a homeless shelter after the family
home burned down in order to remain close to his children. Even while
incarcerated, he tried to maintain communication with his children,
although it appears that DCS failed to fulfill its constitutional obligation to
facilitate such contact. But when a parent commits a felony and is sentenced
to lengthy incarceration, and the other parent is not present, the risk of
forfeiting parental rights is necessarily great.

¶33 In this decision, the Court has begun to reattach the standards
for termination of parental rights to their essential due process moorings,
in two significant and commendable ways. First, it tightens the factors that
should be considered in terminating a child’s relationship with an
incarcerated parent, so that they are no longer “self-fulfilling” such that
“incarcerated parents could never adequately maintain a parent-child
relationship with their young children,” an implication the Court correctly
concludes is “contrary to law.” Supra ¶ 17.

¶34 Second, the Court makes clear that DCS must facilitate, and
certainly may not affirmatively thwart, a parent’s efforts to maintain a
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JUSTICE BOLICK, concurring in part and in the judgment

relationship with his or her children while in custody. Supra ¶¶ 18–21; see
Santosky, 455 U.S. at 747–78; Michael J., 196 Ariz. at 253 ¶ 38 (Zlaket, C.J.,
concurring in part and dissenting in part) (criticizing the predecessor
agency to DCS for its failure to facilitate reunification). I trust that in future
cases, lower courts will require DCS to facilitate maintaining the parental
relationship as it is constitutionally required to do, and that this Court will
overturn termination orders where DCS fails to do so.

¶35 For the foregoing reasons, I concur with the substance and
outcome of the Court’s opinion.

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