Andrew G. v. Dcs, S.G. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANDREW G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.G., Appellees.
No. 1 CA-JV 15-0341
FILED 5-5-2016
Appeal from the Superior Court in Maricopa County
No. JD508120
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, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
ANDREW G. v. DCS, S.G.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.
C A T T A N I, Judge:
¶1 Andrew G. (“Father”) appeals the superior court’s
termination of his parental rights to S.G. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 S.G. was born in June 2004 while Father was in prison. Father
saw S.G. once between his release in 2008 and his return to incarceration in
2010. Father testified that he interacted with S.G.’s mother (“Mother”) for
a short time during that period, but stopped doing so due to Mother’s
substance abuse problems.1 Father claimed that he filed a civil suit in 2008
seeking custody of S.G., but that he was unsuccessful because he lacked
adequate information about S.G.
¶3 Father was arrested in January 2010 on three felony charges,
and he has remained incarcerated since that time. He was convicted of all
three felonies, and he was sentenced to 10-years’ imprisonment.
¶4 The Department of Child Safety (“DCS”) took S.G. into care
in March 2013. Although Father was in jail in Maricopa County, DCS did
not locate him until early 2015, at which point S.G. had been a dependent
child for more than a year. Father testified that he sent S.G. two letters and
three postcards after learning of the dependency, but the DCS case manager
disputed that assertion. DCS did not initiate visitation between Father and
S.G. because a psychologist recommended against it.
¶5 S.G., who was 11 years old at the time of the severance
adjudication, did not remember ever having a relationship with Father,
even during the period that Father was out of prison. S.G.’s long-time,
potentially-adoptive familial placement likewise indicated she was
unaware of any contact between Father and S.G.
1 Mother’s parental rights have been terminated, and she is not a party
to this appeal.
2
ANDREW G. v. DCS, S.G.
Decision of the Court
¶6 After the adjudication, the superior court terminated Father’s
parental rights on the basis that his felony incarceration would deprive S.G.
of a normal home for a period of years, and that severance would be in
S.G.’s best interests. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(4).2 Father
timely appealed the court’s ruling, and we have jurisdiction under A.R.S. §
8-235(A).
DISCUSSION
¶7 Father challenges the superior court’s finding that the length
of his felony sentence constituted grounds for severance; he does not
challenge the court’s best interests determination.
¶8 The superior court may terminate the parent–child
relationship if clear and convincing evidence establishes at least one
statutory ground for severance, and a preponderance of the evidence shows
severance to be in the child’s best interests. A.R.S. § 8-533(B); Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review the court’s severance
ruling for an abuse of discretion, deferring to the court’s credibility
determinations and factual findings. Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002).
¶9 The statutory ground of severance due to length of felony
sentence requires proof that an incarcerated parent’s felony 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). The length of a parent’s sentence is not
dispositive by itself. Jesus M., 203 Ariz. at 281, ¶ 9. Instead, all relevant
circumstances must be considered, including several factors set forth by the
Arizona Supreme Court in Michael J. v. Arizona Department of Economic
Security, 196 Ariz. 246, 251–52, ¶ 29 (2000):
(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
2 Absent material revisions after the relevant date, we cite a statute’s
current version.
3
ANDREW G. v. DCS, S.G.
Decision of the Court
provide a normal home life, and (6) the effect of the
deprivation of a parental presence on the child at issue.
¶10 Here, by the time of severance, 11-year-old S.G. had lived
without Father for approximately 10 years, and Father still had several
more years remaining on his prison sentence. Father had minimal contact
with S.G., and S.G. indicated that he did not have a relationship with Father.
While incarcerated, Father did not seek to foster a relationship with S.G.
and, even after learning of the dependency, Father made little effort to
communicate with him. S.G. had no other parent who could provide a
normal home during Father’s incarceration because Mother’s parental
rights had been severed. Thus, given the absence of a meaningful parent–
child relationship between Father and S.G., the superior court did not err
by concluding that the Michael J. factors supported severance.
¶11 Father argues that DCS failed to make reasonable efforts to
locate him and that, had DCS contacted him at the time of the dependency
determination in 2013, he would have used that time to develop a
relationship with S.G. But the record reflects that, although unsuccessful,
DCS conducted a diligent record search attempting to find Father.
Moreover, Father did not have an ongoing relationship with S.G. before
DCS’s involvement, and even after learning of the dependency, Father
made at most minimal efforts to foster a relationship with him.
Accordingly, and in light of the superior court’s finding that severance was
in S.G.’s best interests, the superior court did not err by severing Father’s
parental rights on the basis of his lengthy felony sentence.
CONCLUSION
¶12 For the foregoing reasons, we affirm.
:ama
4