Nicholas P. v. Dcs, S.P. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NICHOLAS P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.P., Appellees. 1
No. 1 CA-JV 15-0286
FILED 1-21-2016
Appeal from the Superior Court in Maricopa County
No. JD22821
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Laura J. Huff
Counsel for Appellees
1The caption has been amended to safeguard the child’s identity pursuant
to Administrative Order 2013-0001.
NICHOLAS P. v. DCS, S.P.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.
T H U M M A, Judge:
¶1 Nicholas P. (Father) appeals the superior court’s order
terminating his parental rights to S.P., arguing the order failed to consider
his anticipated early release date from prison, focusing instead on his
maximum release date. Because Father has shown no reversible error, the
order is affirmed.
FACTS2 AND PROCEDURAL HISTORY
¶2 Father was sentenced to three years in prison in the first half
of 2013. S.P. was born in late September 2013. Father was in prison
continuously from S.P.’s birth through the superior court’s order
terminating his parental rights.
¶3 The Department of Child Safety (DCS) took S.P. into custody
and filed a dependency petition in October 2013, alleging incarceration as
to Father and substance abuse and an open dependency for other children
as to S.P.’s Mother. Later that month, S.P. was found dependent as to both
parents. Mother’s parental rights to S.P. were terminated and she is not a
party to this appeal. By June 2014, S.P. was placed with her maternal
grandparents, with whom she has lived and thrived ever since.
¶4 Father talked with Mother (and the infant S.P.) on the phone
almost every day from December 2013 to June 2014. After S.P. was placed
with grandparents, Father sent some letters and cards to S.P. and
unsuccessfully attempted to call S.P.
¶5 In September 2014, over Father’s objection, the superior court
changed the case plan to severance and adoption. DCS’ motion to terminate
2This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).
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NICHOLAS P. v. DCS, S.P.
Decision of the Court
alleged Father’s felony prison sentence was “of such length that the child
will be deprived of a normal home for a period of years.” See Ariz. Rev. Stat.
(A.R.S.) § 8-533(B)(4) (2016).3
¶6 The severance adjudication occurred in August 2015, nearly
two years after S.P. was taken into care. Father testified that he was
sentenced to three years in prison before S.P.’s birth, with an early-release
date of September 29, 2015 and a maximum-release date of December 28,
2015. The court heard evidence of Father’s prior prison time (7.5 years
imposed in 2001) and that, while in prison for the three year term, he tested
positive for marijuana use, even while taking substance abuse classes.
Father admitted that he did not have a normal parent-child relationship
with S.P. and would likely be living in a half-way house when released from
prison. Father also testified he had been sober for six months and was
willing to engage in all services required of him to keep his parenting rights.
S.P.’s case manager testified that S.P. had been living with her maternal
grandparents for more than a year and had bonded with her grandparents
and older siblings, who are also placed with her grandparents but are not
part of this appeal.
¶7 After considering the evidence and argument, the superior
court found DCS met its evidentiary burden and granted the motion to
terminate. This court has jurisdiction over Father’s timely appeal pursuant
to Arizona Revised Statutes (A.R.S.) sections 8-235, 12-120.21(A)(1) and 12-
2101(A)(10) and Arizona Rules of Procedure for the Juvenile Court 103-04.
DISCUSSION
I. The Superior Court Did Not Err In Terminating Father’s Parental
Rights.
¶8 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8–533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court
“is in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts,” this court will affirm
an order terminating parental rights so long as it is supported by reasonable
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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NICHOLAS P. v. DCS, S.P.
Decision of the Court
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).
¶9 DCS was required to prove Father was “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). Father argues that, because the minute entry
granting termination states “[t]he possibility of earlier release [from
incarceration] is not a factor to consider,” “the termination order is
predicated upon an incorrect statutory interpretation” and must be
reversed.
¶10 When considering a motion to terminate based on length of
felony sentence, the superior court
should consider all relevant factors, including,
but 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.
Michael J., 196 Ariz. at 251-52 ¶ 29. The superior court expressly
enumerated, weighed and considered these factors based on the evidence
presented and, after doing so, granted severance.
¶11 Although the “anticipated release date is a relevant factor in
determining whether a child will be deprived of a normal home for a period
of years,” Arizona Dep’t of Economic Security v. Rocky J., 234 Ariz. 437, 441 ¶
16 (App. 2014), Father has not shown the superior court erred by
considering his maximum release date, see Arizona Dep’t of Economic Security
v. Matthew L., 223 Ariz. 547, 550 ¶ 15 (App. 2010) (“[a]s long as the juvenile
court considers the length of sentence, we find no error for it to also
consider the anticipated release date”); Rocky J., 234 Ariz. at 441 ¶ 17
(“nothing shows that the [superior] court failed to appreciate the original
length of the sentence or the maximum release date”).
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NICHOLAS P. v. DCS, S.P.
Decision of the Court
¶12 In applying the Michael J. factors and assessing the length of
Father’s prison sentence, the superior court correctly considered his
anticipated release date: “Father’s current release date is September 29, 2015
and has been delayed due to infractions by Father while incarcerated. His
maximum release date is late December, 2015.” This express statement
leaves no doubt that the court considered as a factor Father’s actual release
date as well as his maximum release date. Accordingly, and
notwithstanding the earlier statement in the minute entry, Father has not
shown the court failed to properly consider both his maximum release and
anticipated release dates.4
CONCLUSION
¶13 The superior court’s order terminating Father’s parental
rights to S.P. is affirmed.
:ama
4 Although not challenged by Father on appeal, the superior also properly
found termination was in the best interests of S.P. See Kent K., 210 Ariz. at
288 ¶ 41. Consistent with the evidence presented at the hearing, the court
found S.P. was thriving in the care of her grandparents, a potentially
adoptive placement where she had been for the majority of her life, and
where she was placed with her siblings.
5