Steven H. v. Dcs, M.H. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
STEVEN H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.H., Appellees.
No. 1 CA-JV 21-0170
FILED 9-21-2021
Appeal from the Superior Court in Maricopa County
No. JD533022
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
STEVEN H. v. DCS, M.H.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 Steven H. (“Father”) appeals the superior court’s order
terminating his parental relationship to his child, M.H. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Paola V. (“Mother”)1 are the biological parents of
M.H., born September 2018. The Department of Child Safety (“DCS”)
received a report the day after M.H. was born that she was showing signs
of opiate withdrawal. Mother admitted to using illicit substances during
her pregnancy, and although DCS did not initiate a dependency action at
that time, it provided the family with supportive services. Father alleged
he was unaware Mother was using unlawful substances.
¶3 In June 2019, DCS received another report regarding concern
that Mother was abusing substances and Father was incarcerated. DCS
confirmed that Father was in prison, but it was unable to substantiate
allegations regarding Mother’s drug abuse. Ultimately, DCS closed the
report without intervention.
¶4 Father was released from prison in October 2019, but about
six weeks later, DCS received a third report regarding Mother abusing
substances and exposing M.H. to hazardous environments. In December
2019, DCS responded to the home and found M.H.’s room covered in rotten
food, dirty diapers, trash, and drug paraphernalia. Father was at Mother’s
home when DCS responded, and he was aware of the home’s condition.
Mother admitted to using illegal substances, and Father acknowledged
Mother’s substance abuse, but denied using illicit substances himself. DCS
removed M.H. from the home and placed her with maternal grandmother.
¶5 DCS initiated a dependency action, alleging M.H. was
dependent as to Mother due to substance abuse and neglect. DCS alleged
1 Mother is not a party to this appeal.
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STEVEN H. v. DCS, M.H.
Decision of the Court
M.H. was dependent as to Father due to his failure to protect her from
Mother’s drug abuse and neglect. DCS referred the parents to drug testing,
substance-abuse assessments, transportation services, and case aides for
supervised visits.
¶6 Soon after, Father was arrested again for armed robbery, and
he admitted to police officers that he was addicted to illegal substances.
Father was incarcerated in January 2020; at that time he had only completed
one drug test and three visits, and he failed to attend his substance-abuse
intake appointment. Father was sentenced to four years in prison with a
release date in June 2023.
¶7 Mother failed to participate in services and, given Father’s
incarceration, DCS moved to terminate both parents’ parental rights to
M.H. in August 2020. Following a termination adjudication hearing, the
superior court terminated both parental relationships.
¶8 Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and
-2101(A)(1).
DISCUSSION
¶9 To terminate a parental relationship, the superior court must
make a two-part inquiry. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149-
50, ¶ 8 (2018). First, the court must find by clear and convincing evidence
at least one of the grounds for termination in A.R.S. § 8-533(B). Id. Second,
the court must find by a preponderance of the evidence that termination is
in the child’s best interests. Id. “The juvenile court, as the trier of fact in a
termination proceeding, is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4 (App. 2002). Accordingly, we accept the court’s factual findings if
reasonable evidence supports them and will affirm its termination ruling
unless it is clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9
(2016).
I. Statutory Ground
¶10 The superior court terminated Father’s parental relationship
pursuant to A.R.S. § 8-533(B)(4), which permits termination when a parent
has been convicted of a felony “if the sentence of that parent is of such
length that the child will be deprived of a normal home for a period of
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Decision of the Court
years.” A.R.S. § 8-533(B)(4). The court considers “all relevant factors,
including, but not limited to” the following:
(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. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29 (2000). The
record contains reasonable evidence to support the court’s decision to
terminate the parental relationship.
¶11 Father testified he had a strong relationship with M.H. prior
to his incarceration. However, Father’s testimony was inconsistent and the
court found he lacked credibility. Father testified that he was with M.H.
nearly twenty-four hours a day, yet he also testified that while he and
Mother were no longer living together, he would drop M.H. off at Mother’s
for overnight visits “pretty much every day.” The DCS case manager
testified that Father was not M.H.’s primary caregiver or the residential
parent prior to his incarceration. Further, Father was incarcerated from
June 2019 to October 2019, and just over a month after his release DCS took
custody of M.H. Shortly after, Father was again arrested and has been
incarcerated since January 2020. By the time M.H. was one year of age,
Father had been incarcerated twice and M.H. had already suffered removal
from the home. While it is unclear exactly how often Father parented M.H.,
the record supports a finding that since her birth Father has had little
opportunity to spend time with M.H.
¶12 Father contends that while incarcerated he has shared video
and telephone calls with the child, but these only take place twice a month
for about fifteen to thirty minutes at a time. Father argues this is sufficient
to maintain a parent-child relationship, but the court found “this limited
contact is not conducive to forming a strong bond and attachment that a
child of this age needs.” The DCS case manager testified to reports that
M.H. does not recognize Father and that she does not mention him before
or after the visits.
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STEVEN H. v. DCS, M.H.
Decision of the Court
¶13 Father argues M.H. is not deprived of a normal home, because
she is in a stable home and will continue to remain there. However, the
“normal home” referenced in the statute refers to Father’s “obligation to
provide a normal home, a home in which [Father] has a presence, and it
does not refer to a ‘normal home’ environment created by [placement].”
Maricopa Cnty. Juv. Action No. JS-5609, 149 Ariz. 573, 575 (App. 1986). Father
was sentenced to four years in prison, and by the time he is released, Father
will have spent over three-fourths of M.H.’s life in prison. The court noted
that reunification may further be delayed, because Father would need to
address his own substance abuse issues and his inability to protect M.H.
from Mother’s substance abuse. Because Mother’s parental rights were also
terminated, there is not another parent to provide a normal home life to
M.H. until Father’s release. This will deprive M.H. of a normal home life
for a significant period of time.
¶14 Finally, Father argues the deprivation of his parental presence
has no effect on M.H., because he is currently able to have frequent contact
with the child. However, as noted above, the visits are virtual, only take
place twice a month, and M.H. does not appear to recognize Father despite
these visits. Additionally, the court found, and the record supports, that
M.H. is affected by Father’s absence because she is forced to rely on others
for her basic and emotional needs.
¶15 The court did not err in terminating Father’s parental
relationship based on his lengthy sentence for a felony conviction.
II. Best Interests
¶16 Father also argues the superior court erred in finding
termination was in M.H.’s best interests. Termination is in a child’s best
interests if the child will benefit from termination, or the child will be
harmed if the court denies it. Alma S., 245 Ariz. at 150, ¶ 13. Evidence of
the availability of an adoption plan, a child’s adoptability, and that an
existing placement is meeting the child’s needs supports a finding that the
child would benefit from termination of the parental-child relationship.
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013);
Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994).
¶17 Father contends he “has unconditional love for M.H.,” and he
has made efforts to communicate with M.H. while in prison. “The existence
and effect of a bonded relationship between a biological parent and a child,
although a factor to consider, is not dispositive in addressing best
interests.” Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 12 (App.
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STEVEN H. v. DCS, M.H.
Decision of the Court
2016). Here, however, the strength of Father and M.H.’s bond prior to his
incarceration is unclear at best. And given M.H.’s age, the court found that
the limited communication taking place during his incarceration would
prevent Father from forming a strong bond and meeting the child’s needs.
¶18 The court’s primary concern is “protect[ing] a child’s interest
in stability and security.” Demetrius L., 239 Ariz. at 4, ¶ 15 (citation and
internal quotation marks omitted). The court found that the current
placement, maternal grandmother, has been meeting the child’s needs and
provides M.H. with “a safe and stable home free from substance abuse and
the attendant instabilities.” Maternal grandmother intends to proceed with
adoption, as well. The court found that M.H.’s placement with a family
member “allows the child to maintain relationships with extended family
members.”
¶19 The superior court did not err in finding that termination was
in M.H.’s best interests.
CONCLUSION
¶20 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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