Anthony P. v. Dcs, B.K. ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANTHONY P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.K., Appellees.
No. 1 CA-JV 15-0175
FILED 12-8-2015
Appeal from the Superior Court in Maricopa County
No. JD27756
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee DCS
ANTHONY P. v. DCS, B.K.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
J O H N S E N, Judge:
¶1 Anthony P. ("Father") appeals the superior court's order
terminating his parental rights. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the parent of a child ("Child") born in January 2014
substance-exposed due to her mother's use of illegal substances. The
Department of Child Safety ("DCS") took Child into custody soon after her
birth and filed a dependency petition based on substance abuse and
neglect.1 Father was incarcerated on January 20, 2014, soon after Child was
born. He was released on bond for several months in the spring of 2014,
and then was sentenced to 2.5 years' incarceration in July 2014 on drug-
related charges, with an expected release in December 2016 and a possible
early release in May 2016.
¶3 At the initial dependency hearing in March 2014, Child was
found dependent as to her mother based on neglect due to substance abuse,
and Child was placed in foster care. The court found Child dependent as
to Father in April 2014. In November 2014, the superior court changed the
case plan to severance and adoption, and DCS moved to terminate parental
rights. The court granted the motion as to Child's mother; she is not a party
to this appeal. After a contested severance trial, the court terminated
Father's parental rights due to his incarceration, pursuant to Arizona
Revised Statutes ("A.R.S.") section 8-533(B)(4) (2015).2
¶4 Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, A.R.S. §§ 8-235(A) (2015),
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
2 Absent material revision after the relevant date, we cite a statute's
current version.
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ANTHONY P. v. DCS, B.K.
Decision of the Court
12-2101 (2015) and Rule 103(A) of the Arizona Rules of Procedure for the
Juvenile Court.
DISCUSSION
¶5 The right to custody of one's child is fundamental, but it is not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in A.R.S. § 8–533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally, the
court must find by a preponderance of the evidence that termination is in
the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
We review a termination order for an abuse of discretion. Mary Lou C. v.
Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
¶6 Section 8-533(B)(4) provides that a parent's rights may be
terminated if "the parent is deprived of civil liberties due to the conviction
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." On appeal,
Father argues the superior court abused its discretion in finding Child
would be deprived of a normal home for a period of years.
¶7 In Michael J., our supreme court set out a non-exclusive list of
factors for courts to consider in determining whether a parent's prison
sentence will deprive a child of "a normal home for a period of years":
(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.
196 Ariz. at 251–52, ¶ 29.
¶8 Father argues insufficient evidence supported the court's
determination that his incarceration would deprive Child of a normal home
for a period of years. Because the superior court is in the best position to
"weigh the evidence, observe the parties, judge the credibility of witnesses,
and make appropriate findings," we must accept its findings of fact unless
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ANTHONY P. v. DCS, B.K.
Decision of the Court
no reasonable evidence supports them. See Jesus M. v. Ariz. Dep't of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶9 Father argues the superior court did not sufficiently take into
account the extent of his relationship with Child. He contends he went to
great lengths to visit Child prior to his incarceration, while he was released
on bail, and even while he was in prison. At trial, Father testified he visited
Child in the hospital every day for approximately two weeks after she was
born. He visited Child approximately 10-15 times while he was released on
bond, and arranged a visit with Child on one occasion while he was
incarcerated.
¶10 There is no indication, however, that the superior court failed
to consider Father's efforts when it made its determination. Father's efforts
to visit Child notwithstanding, the evidence established that Father had
been incarcerated for most of Child's life. Father admitted that he had not
developed a strong relationship with Child before his incarceration and that
he was incapable of nurturing or maintaining a relationship with Child
while incarcerated. As such, reasonable evidence supported the court's
finding that Father did not have a strong parent-child relationship with
Child and would not have such a relationship for a period of years.
Additionally, Child's mother's rights had been terminated, which further
supported the court's finding that Father's incarceration would deprive
Child of a normal home for a period of years.
¶11 Father also argues that the superior court erred in concluding
that termination is in Child's best interests. A best-interests finding may be
supported by evidence of an affirmative benefit or a detriment to the child
should the relationship continue. Jennifer B. v. Ariz. Dep't of Econ. Sec., 189
Ariz. 553, 557 (App. 1997). Being available for adoption is an affirmative
benefit that can support a finding that termination is in a child's best
interests. See Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 352
(App. 1994). Whether severance is in a child's best interests is a question of
fact for the superior court, and we view the evidence and draw all
reasonable inferences from it in favor of supporting the superior court's
findings. Jesus M., 203 Ariz. at 282, ¶ 13.
¶12 Father argues that termination of his rights is detrimental to
Child because retaining the parent-child relationship is in Child's best
interests. Again, Father points to the time he spent with Child and his
involvement in programs to show that he is attempting to better himself.
Notwithstanding Father's contentions, the court heard evidence that Child
is adoptable and would benefit from being adopted. Accordingly, there
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ANTHONY P. v. DCS, B.K.
Decision of the Court
was evidence supporting the court's determination that severance of
Father's rights would be in Child's best interests.
CONCLUSION
¶13 Because sufficient evidence supported the court's order
terminating Father's parental rights, we affirm the order.
:ama
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