Gabrial G. v. Dcs, G.G. ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GABRIAL G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, G.G., Appellees.
No. 1 CA-JV 17-0390
FILED 4-24-2018
Appeal from the Superior Court in Maricopa County
No. JD527057
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee DCS
GABRIAL G. v. DCS, G.G.
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 Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Gabrial G. ("Father") challenges the superior court's order
terminating his parental rights to his daughter, G.G. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 G.G. was born in January 2003. In September 2013, the
Department of Child Safety ("DCS") took her into care, alleging she was
dependent due to Father's incarceration, mental health issues and neglect.
The court found her dependent as to Father in May 2014, and the court
adopted a family reunification case plan. In June 2014, G.G. began living
with her maternal grandmother, who is the potential adoptive placement.
¶3 In December 2014, over Father's objection, the court approved
a change in case plan to severance and adoption. In May 2015, DCS moved
to terminate Father's parental rights, alleging 15 months in out-of-home
placement. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(8)(c) (2018).1 In January
2016, however, on motion by DCS, the superior court changed the case plan
to family reunification concurrent with severance and adoption and
dismissed the motion for termination. In August 2016, the court granted
DCS's motion to change the case plan back to severance and adoption, and
DCS filed a new motion to terminate Father's parental rights based on the
length of his felony prison sentence. See A.R.S. § 8-533(B)(4).
¶4 After a hearing in August 2017, the superior court granted the
motion to terminate. This court has jurisdiction over Father's timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-
235(A) (2018), 12-120.21(A) (2018) and -2101(A) (2018).
1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
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GABRIAL G. v. DCS, G.G.
Decision of the Court
DISCUSSION
¶5 Termination of parental rights requires clear and convincing
evidence of a statutory ground set out in § 8-533(B), Michael J. v. Ariz. Dep't
of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and proof 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). 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
evidence. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.
2009).
¶6 Father has been incarcerated for at least half of G.G.'s life.
Most recently, in September 2014, Father was sentenced to 4.5 years in
prison; he had been in custody for nearly six months before sentencing.
Father's early release date on the 2014 sentence was November 2017; his
maximum end date was mid-February 2018. During his incarceration,
Father maintained occasional telephone contact with G.G. and sent letters
to her.
¶7 Under § 8-533(B)(4), the court may terminate the rights of a
parent who is "deprived of civil liberties due to the conviction of a felony"
when the parent's prison sentence "is of such length that the child will be
deprived of a normal home for a period of years." Father argues the court
erred by granting severance on this ground because he continues to have a
relationship with G.G. and because his "anticipated release from
incarceration" was just three months after the August 2017 severance
hearing.
¶8 Our supreme court has ruled that in considering a motion to
terminate a parent's rights based on incarceration, 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
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GABRIAL G. v. DCS, G.G.
Decision of the Court
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.
¶9 The superior court here expressly listed and considered the
Michael J. factors based on the evidence presented. In doing so, the court
found that although a relationship between Father and G.G. "has existed to
some degree," "given [the] gaps due to Father's repeated incarcerations, and
the child's desire to have Father's parental rights severed [and] be adopted
by her maternal grandmother," "the parent-child relationship [did not] have
great strength."
¶10 The court further found that although Father communicated
with G.G. from prison through letters and telephone calls, "that simply does
not adequately compensate for Father's absence for a majority of the child's
life." Finally, the court noted that the parental rights of G.G.'s mother had
been terminated, and as a result, there was no other parent to provide the
child with a normal home life: "Father has overwhelmingly not been there
to provide a normal parental presence a child needs to grow and mature, to
feel safe and secure and provided for financially, emotionally and
otherwise."
¶11 These findings, which the record supports, sufficiently
establish grounds for severance under § 8-533(B)(4). See Ariz. Dep't of Econ.
Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 17 (App. 2014).
¶12 Father also argues the superior court erred by finding that
severance was in G.G.'s best interests. Father argues he loves the child and
demonstrated his ability to care for her when she was in his sole custody
for a period of time in 2013. He contends that since his incarceration, he has
matured and wants to take responsibility for her.
¶13 To support a best-interests determination, the evidence must
show either that the child "would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship." Ariz.
Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). The
superior court did not err by finding severance was in G.G.'s best interests
based on evidence that she had "clearly expressed" a desire to be adopted
by her maternal grandmother and that adoption would provide stability,
permanence and the potential to maintain relationships with extended
family members.
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GABRIAL G. v. DCS, G.G.
Decision of the Court
CONCLUSION
¶14 For the foregoing reasons, we affirm the order terminating
Father's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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