Trung N. v. Dcs, J.C. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TRUNG N., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.C., Appellees.
No. 1 CA-JV 19-0146
FILED 10-17-2019
Appeal from the Superior Court in Maricopa County
No. JD35333
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
TRUNG N. v. DCS, J.C.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.
T H U M M A, Judge:
¶1 Trung N. (Father) challenges the superior court’s order
terminating his parental rights to his biological child J.C. Father argues the
order improperly terminated his parental rights based on length of felony
sentence grounds and in finding termination was in the child’s best
interests. Because sufficient evidence supports both findings, the order is
affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 J.C. was born in 2012 to Father and Heather C. (Mother).1
Father, Mother and J.C. lived together for little more than a year until Father
was arrested (in late December 2013), then charged and convicted of
trafficking in stolen property, a Class 3 felony. In October 2014, Father was
sentenced to seven years in prison, with an anticipated release date of
October 2019, and a maximum release date of January 2020.
¶3 During Father’s incarceration, J.C. and Mother first lived with
J.C.’s maternal grandmother (Grandmother). In January 2018, after Mother
was arrested, the Department of Child Safety (DCS) took J.C into custody.
DCS filed a dependency petition and the court placed J.C. with
Grandmother. In February 2018, J.C. was found dependent as to both
parents, and the court adopted a family reunification case plan. In October
2018, DCS filed a motion to terminate, alleging length of felony sentence as
to Father. See Ariz. Rev. Stat. (A.R.S.) section 8-533(B)(4) (2019).2
1 Mother’s parental rights to J.C. have been terminated and she is not a party
to this appeal.
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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TRUNG N. v. DCS, J.C.
Decision of the Court
¶4 After a severance adjudication in April 2019, during which a
DCS caseworker and Father testified, the superior court granted the motion.
This court has jurisdiction over Father’s timely appeal pursuant to A.R.S.
§§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for
the Juvenile Court 103(A).
DISCUSSION
¶5 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); see also 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 evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223
Ariz. 86, 93 ¶ 18 (App. 2009) (citations omitted).
I. Reasonable Evidence Supports The Superior Court’s Finding That
DCS Proved Termination Was Proper Based On Father’s Length
Of Felony Sentence.
¶6 A parent’s rights may be terminated when “the parent is
deprived of civil liberties due to the conviction 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 years.” A.R.S. § 8-533(B)(4). In assessing such a claim,
the court should consider “all relevant factors,” including:
(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.
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TRUNG N. v. DCS, J.C.
Decision of the Court
Michael J., 196 Ariz. at 251–52 ¶ 29. The focus is on whether the “child’s
needs during the incarceration” are met, not on “whether the parent would
be able to continue the parent-child relationship after release.” Jeffrey P. v.
Dep't of Child Safety, 239 Ariz. 212, 215 ¶ 14 (App. 2016).
¶7 The superior court properly considered all relevant factors,
including the six Michael J. factors. First, although Father had a parent-child
relationship with J.C. before Father’s incarceration, this period was short,
lasting only about 16 months.
¶8 Second, Father’s contact with J.C. while incarcerated has been
intermittent. While in jail, Mother and J.C. visited Father once a week; but
when Father was transferred to prison in Douglas, about ten months later,
he only saw J.C. about twice a year given the distance involved. These
personal visits stopped altogether near the end of 2016 or early 2017 when
Mother stopped bringing J.C. for visits. At the time of the severance trial,
Father had not seen J.C. for more than two years. Similarly, although Father
testified he would call J.C. weekly, in October 2017 Mother stopped taking
the calls. Several times a month, Father sent letters to Mother and received
information regarding J.C. from her. Mother stopped responding to letters
around the time the personal visits ceased. Even when Mother stopped
sending letters, answering phone calls and visiting, Father continued to
send some letters and to make phone calls to J.C. through DCS.
¶9 Father argues DCS should have done more to facilitate in-
person contact with J.C. Although the termination order does not explicitly
discuss DCS’ choice not to facilitate in-person visits, J.C.’s case manager
testified that in-person visits were “unrealistic” for a six-year-old because
of the long drive to prison and there was no adult “willing or appropriate”
to take J.C. to visit. Although Father made efforts to maintain contact with
J.C., reasonable evidence supports the court’s finding, based on the totality
of the circumstances, that the degree to which the parent-child relationship
could be continued and nurtured during incarceration weighed in favor of
termination. See State v. Fischer, 242 Ariz. 44, 52 ¶ 28 (2017) (“The appellate
court’s role is not to weigh the evidence.”); Dominique M. v. Dep’t of Child
Safety, 240 Ariz. 96, 98 ¶ 9 (App. 2016) (“Mother is in essence asking us to
reweigh the evidence presented to the juvenile court. We decline to do so.”).
¶10 Third, the responsibility to provide a normal home rests with
the parent, not with other family members. See Maricopa Cty. Juv. Action No.
JS–5609, 149 Ariz. 573, 575 (App. 1986). J.C. has not had a healthy home for
many years. Father was incarcerated when J.C. was little more than a year
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TRUNG N. v. DCS, J.C.
Decision of the Court
old. Since late 2017, J.C. has been living with Grandmother because of
Father’s incarceration and Mother’s struggles.
¶11 Fourth, when assessing the length of incarceration “[w]hat
matters to a dependent child is the total length of time the parent is absent
from the family, not” the time remaining until release. Jesus M. v. Ariz. Dep't
of Econ. Sec., 203 Ariz. 278, 281 ¶ 8 (App. 2002). Therefore, although Father’s
early release date is in October 2019 and maximum release in January 2020,
the fact remains that Father has been incarcerated for most of J.C.’s life. J.C.
was just a year old when Father was incarcerated and will be seven by the
time Father is released. Furthermore, even though Father has commendably
obtained his GED, worked as an auto mechanic and taken numerous self-
improvement classes while in prison, reunification may not occur
immediately upon his release. The trial evidence indicates, and the superior
court found, that he will need to participate in and successfully complete
various services after his release from prison before any reunification could
begin. The court did not err in weighing this factor.
¶12 Fifth, since late 2017 Mother has not provided a normal home
for J.C. Moreover, J.C. was found dependent as to Mother, her parental
rights were then terminated and she is not available to provide a normal
life for J.C., who has been living with Grandmother.
¶13 Sixth, there was little direct evidence as to the effect of
Father’s absence in J.C.’s life. However, the superior court noted, and the
record shows, that J.C. had only seen Father “a handful of times since
October 2014, and not at all since December 2016/January 2017.” This
absence, coupled with Mother’s inability to care for J.C., resulted in
Grandmother “provid[ing] all of [J.C.’s] care for an extended period.”
¶14 On this record, Father has failed to show that the superior
court’s findings were not supported by trial evidence or otherwise were an
abuse of discretion. Accordingly, the finding of grounds for termination of
parental rights pursuant to length of felony sentence is affirmed.
II. Father Has Not Shown The Superior Court Erred In Finding
Termination Was In The Best Interests Of The Child.
¶15 Father argues insufficient evidence showed termination was
in J.C.’s best interests. This court reviews the best interests finding for an
abuse of discretion. Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 369 ¶ 15
(App. 2018) (citations omitted). If a court has found the existence of a
statutory ground for termination, the court “can presume that the interests
of the parent and child diverge.” Alma S. v. Dep’t of Child Safety, 245 Ariz.
5TRUNG N. v. DCS, J.C.
Decision of the Court
146, 150 ¶ 12 (2018) (quoting Kent K., 210 Ariz. at 286 ¶ 35). At this point,
the “child’s interest in stability and security” are the court’s main concern.
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016) (quoting Kent K., 210
Ariz. at 286 ¶ 34). Therefore, termination is in a child’s best interests if either
the child will benefit from severance or be harmed if the parent-child
relationship continues. See Matter of Appeal in Maricopa County Juvenile
Action No. JS-500274, 167 Ariz. 1, 5 (1990).
¶16 Although Father argues J.C. will not be harmed by a
continuation of their relationship and testified he is committed to parenting
J.C. and that they have a bond, a court need not determine that a continued
relationship is detrimental; a court need only find that the child would
affirmatively benefit from severance. See id. In doing so, the court is directed
to consider the totality of the circumstances, Alma S., 245 Ariz. at 150–51 ¶
13, including whether adoptive placement is immediately available,
whether the child’s current placement is meeting the needs of the child or
whether the child is adoptable, see Raymond F. v. Ariz. Dep’t of Econ. Sec., 224
Ariz. 373, 379 ¶ 30 (App. 2010) (citing cases). Here, “the child’s prospective
adoption is a benefit that can support a best-interests finding.” Demetrius L.,
239 Ariz. at 4 ¶ 16 (citation omitted).
¶17 The superior court properly could find J.C. will benefit from
adoption and reunification with Father will not be immediate upon his
release. J.C. has been in Grandmother’s care since late 2017 and she has
plans to adopt him. J.C. has bonded with Grandmother and he is doing well
in this familial placement. Father testified Grandmother is a good caretaker
for his son. Considering these facts, Father has failed to show the court
erred in finding severance in the best interests of J.C.
CONCLUSION
¶18 Because Father has shown no error, the order terminating his
parental rights to J.C. is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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