Arizona Department of Economic Security v. Rocky J. , 234 Ariz. 437 ( 2014 )


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  •                                 IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Appellant,
    v.
    ROCKY J., O.K., Appellee.
    Nos. 1 CA-JV 13-0255, 1 CA-JV 13-0294 (Consolidated)
    FILED 4-10-2014
    Appeal from the Superior Court in Maricopa County
    No. JD13879
    The Honorable Daniel G. Martin, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Erika Z. Alfred
    Counsel for Appellant
    Robert D. Rosanelli, Attorney at Law, Phoenix
    By Robert D. Rosanelli
    Counsel for Appellee
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    OPINION
    Judge Randall M. Howe delivered the opinion of the Court, in which
    Acting Presiding Judge John C. Gemmill and Judge Jon. W. Thompson
    joined.
    H O W E, Judge:
    ¶1             The Arizona Department of Economic Security (ADES)
    appeals the juvenile court’s denial of its motion to terminate Rocky J.’s
    (Father) parental rights to O.K. (Child). ADES argues that the juvenile
    court erred in not finding that Father’s incarceration would deprive Child
    of a normal home for a period of years under A.R.S. § 8–533(B)(4) by
    (1) improperly considering Father’s anticipated release date from prison
    instead of the entire length of his sentence and (2) failing to apply the
    Michael J. 1 factors. We affirm the juvenile court’s ruling. The court was
    aware of the length of Father’s sentence and reasonably concluded that
    Father’s impending anticipated release date was a critical fact in
    determining that termination was not proven under § 8–533(B)(4). Further,
    the court was not required to make specific findings on the record
    regarding the Michael J. factors, and the factors support the juvenile
    court’s ruling that termination was not warranted.
    FACTS AND PROCEDURAL HISTORY
    ¶2             Jessica K. (Mother), who was unmarried, gave birth to Child
    in September 2001. Father was incarcerated in New Mexico at the time of
    Child’s birth. Mother wrote to Father informing him of Child’s birth, and
    Father asked for a photograph of Child but never received one. Although
    Father initially had Mother’s post office box address, he lost contact once
    “the number ran out.”
    ¶3          Child lived with Mother for six months, but thereafter lived
    with her maternal grandmother (Grandmother). When Father learned that
    1         Michael J. v. Ariz. Dep’t of Econ. Sec., 
    196 Ariz. 246
    , 
    995 P.2d 682
    (2000).
    2
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    Child lived with Grandmother, Father made collect phone calls and wrote
    letters to Child. Grandmother did not give the letters to Child, however.
    ¶4           Mother abandoned Child in 2004, and in March 2005 the
    juvenile court adjudicated Child dependent because of Mother’s
    abandonment and Father’s incarceration. At the dependency hearing,
    Father agreed to the dependency, but denied the allegations in the ADES’s
    dependency petition. Mother did not appear at the hearing. The juvenile
    court adjudicated Child dependent, placed Child in ADES’s care and
    custody, and initiated a reunification case plan. Father called and wrote to
    Child while she was in ADES’s care.
    ¶5              In May 2006, Father was released from prison and asked to
    serve his parole in Arizona with the intention of regaining custody of
    Child. He was not allowed to do so because he had no immediate family
    in Arizona; instead, he was allowed to serve his parole in Nevada, where
    his sister lived. While there, he was convicted of burglary in December
    2006 and sentenced to 12.5 years imprisonment with parole eligibility after
    5 years. Upon Father’s release on parole, he violated his release conditions
    and was again incarcerated in Nevada.
    ¶6             In April 2007, Grandmother was appointed Child’s
    guardian. Father then wrote multiple letters to the juvenile court
    requesting contact with Child. The court denied Father’s request, finding
    that “visitation between [Child] and her parents shall be at the discretion
    of [Child’s] permanent guardian.” Father’s sister contacted Grandmother
    to ask if Father could have contact with Child, but Grandmother refused.
    Father nevertheless wrote letters to Child and participated in a prison
    program that provided a Christmas gift to Child.
    ¶7            In April 2012, ADES filed a second dependency petition,
    stating that Grandmother was no longer willing to care for Child because
    of Child’s behavior. On April 30, 2012, the court found Child dependent as
    to Grandmother. In May 2012, Father wrote to the juvenile court, stating
    that he opposed the termination of his parental rights to Child. Father
    claimed that he had not been allowed to contact Child for the past seven
    years and admitted that Child did not know him. Father wrote letters to
    Child, but they were not delivered to her because her therapist deemed
    that it was not in her best interest.
    ¶8             In January 2013, ADES moved to terminate Father’s and
    Mother’s parental rights to Child pursuant to A.R.S. § 8-533(B)(1) and
    (B)(4), claiming that they had each abandoned Child and that the length of
    3
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    Father’s imprisonment would deprive Child of a normal home for a
    period of years. ADES sought severance so that Grandmother could adopt
    Child. Although Grandmother had asked for her guardianship of Child to
    be revoked in April 2012, Grandmother had a change of heart because
    Child had matured since that time and had improved behavior.
    ¶9              At the severance hearing, Father testified that he would be
    released from prison no later than April 2014 and that he had arranged for
    transitional housing after his release. Father admitted that he did not have
    a relationship with Child, although he had attempted to write to her on
    every holiday and arranged to have gifts sent to her on Christmas. He also
    testified that in 2005 he spoke to Child once a week by telephone.
    ¶10          On September 10, 2013, the juvenile court terminated
    Mother’s parental rights because she had failed to appear after proper
    notice and thus waived her right to contest the termination. 2 The court,
    however, refused to terminate Father’s parental rights. The court found
    that Father had not abandoned Child because although he had been
    unable to parent Child, he had made “substantial efforts to communicate”
    with Child and “strongly desire[d] to establish a relationship with her.”
    The court also found that Grandmother had prevented him from having
    meaningful contact with Child. The court found that Father’s
    imprisonment would not deprive Child of a normal home because Father
    would be released from prison in April 2014. The court noted that
    although Father might be on parole after his release from prison and
    would need to demonstrate an extended period of sobriety, these time
    periods did not justify the termination of Father’s parental rights. Because
    the court found no grounds for terminating Father’s parental rights, it did
    not conduct a best-interest analysis.
    ¶11            On September 24, 2013, ADES filed a notice of appeal. That
    same day, ADES moved for reconsideration, arguing that the court erred
    by failing to consider the entire length of Father’s sentence, his maximum
    release date, and the six Michael J. factors. On September 27, 2013, the
    court denied ADES’s motion for reconsideration in an unsigned minute
    entry. The court issued a signed order denying ADES’s motion for
    2     Mother did not appeal the ruling and is not a party to this appeal.
    4
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    reconsideration on October 30, 2013. On November 8, 2013, ADES filed a
    second notice of appeal. 3
    DISCUSSION
    ¶12           ADES argues that the juvenile court erred in finding that
    ADES failed to prove by clear and convincing evidence that Father’s
    parental rights should have been terminated under § 8–533(B)(4) because
    the length of Father’s prison sentence will deprive Child of a normal home
    for a period of years.4 We view the evidence in a severance case in the
    light most favorable to sustaining the juvenile court’s findings and will
    affirm unless, as a matter of law, no reasonable evidence supports those
    findings. Denise R. v. Ariz. Dep’t of Econ. Sec., 
    221 Ariz. 92
    , 95 ¶ 10, 
    210 P.3d 1263
    , 1266 (App. 2009). Because the trial court is “in the best position to
    weigh the evidence, judge the credibility of the parties, observe the
    parties, and make appropriate factual findings,” Pima Cnty. Dependency
    Action No. 93511, 
    154 Ariz. 543
    , 546, 
    744 P.2d 455
    , 458 (App. 1987), this
    Court will not reweigh the evidence, Maricopa Cnty. Juv. Action No. JV–
    132905, 
    186 Ariz. 607
    , 609, 
    925 P.2d 748
    , 750 (App. 1996). Additionally, we
    review de novo legal issues requiring the interpretation and application of
    § 8–533. See Ariz. Dep’t of Econ. Sec. v. Ciana H., 
    191 Ariz. 339
    , 341 ¶ 11, 
    955 P.2d 977
    , 979 (App. 1998).
    ¶13            Termination of parental rights is appropriate only when
    clear and convincing evidence proves a statutory ground for termination,
    Christy C. v. Ariz. Dep’t of Econ. Sec., 
    214 Ariz. 445
    , 449 ¶ 12, 
    153 P.3d 1074
    ,
    1078 (App. 2007), and a preponderance of the evidence shows that
    termination is in the child’s best interest, Kent K. v. Bobby M., 
    210 Ariz. 279
    ,
    3      Father argues that ADES’s September 21, 2013, notice of appeal
    divested the juvenile court of jurisdiction to consider ADES’s motion for
    reconsideration filed the same day, which precludes this Court from
    considering ADES’s subsequent appeal from the denial of the motion for
    reconsideration. We need not decide this question because the issue raised
    in the motion for reconsideration and on the appeal from its denial—
    whether the juvenile court erred in finding that ADES did not prove by
    clear and convincing evidence that severance was required under § 8–
    533(B)(4)—is wholly encompassed within the first appeal from the
    juvenile court’s initial denial of the severance petition.
    4       ADES does not challenge the juvenile court’s ruling that ADES
    failed to prove abandonment as a grounds for termination.
    5
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    284 ¶ 22, 
    110 P.3d 1013
    , 1018 (2005). One ground for termination is that
    “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.” § 8–533(B)(4).
    ¶14          Section 8–533(B)(4) provides “no ‘bright line’ definition of
    when a sentence is sufficiently long to deprive a child of a normal home
    for a period of years,” and each case depends on its particular facts.
    Michael 
    J., 196 Ariz. at 251
    29, 995 P.2d at 687
    . In making this
    determination, “all relevant factors,” should be considered, which include
    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.
    
    Id. at 251–52
    29, 995 P.2d at 687
    –88. The juvenile court is not required,
    however, to make findings on the record regarding each of these factors.
    Christy 
    C., 214 Ariz. at 452
    19, 153 P.3d at 1081
    . We will affirm the
    juvenile court’s ruling if the facts support the ruling “whether or not each
    supportive fact is specifically called out by the trial court in its findings.”
    
    Id. at 451-52
    19, 153 P.3d at 1080-81
    . “[T]he juvenile court will be deemed
    to have made every finding necessary to support the judgment.” Ariz.
    Dep’t of Econ. Sec v. Matthew L., 
    223 Ariz. 547
    , 549 ¶ 7, 
    225 P.3d 604
    , 606
    (App. 2010).
    ¶15           In ruling that ADES had failed to prove by clear and
    convincing evidence that Father’s sentence would deprive Child of a
    home for a period of years, the juvenile court relied on Father’s impending
    release from prison in less than a year from the severance trial. Because
    the evidence showed that Father was expected to be released on parole in
    April 2014, just over seven months from the date of the severance trial, the
    court reasonably concluded that ADES had failed to prove that Child
    would be deprived of a home for a period of years, even if Father would
    have to spend a period of time in a half-way house after his release.
    6
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    ¶16           Although ADES argues that the juvenile court erred by
    considering only the length of time between the severance trial and
    Father’s release and not the length of Father’s sentence or maximum
    release date, nothing shows that the court failed to appreciate the original
    length of the sentence or the maximum release date of 2018. The juvenile
    court was not required to expressly note them in its ruling, Christy 
    C., 214 Ariz. at 452
    19, 153 P.3d at 1081
    (holding that express findings on
    Michael J. factors not required), and moreover, because the court denied
    the petition to terminate Father’s rights, it was not required to make any
    findings at all, Matthew 
    L., 223 Ariz. at 549
    –50 ¶ 
    10, 225 P.3d at 606
    –07
    (recognizing that A.R.S. § 8–533(A) does not require the juvenile court “to
    make findings when denying a motion to terminate the parent-child
    relationship”). ADES presented testimony about the length of Father’s
    sentence and maximum release date and argued that this supported
    termination. The failure to persuade the court that this justified
    termination—in the face of Father’s impending release from prison—does
    not mean that the court failed to consider Father’s sentence. An
    anticipated release date is a relevant factor in determining whether a child
    will be deprived of a normal home for a period of years. Matthew 
    L., 223 Ariz. at 550
    15, 225 P.3d at 607
    (holding that “[a]s long as the juvenile
    court considers the length of sentence, we find no error for it to also
    consider the anticipated release date.”). The juvenile court did not err.
    ¶17           ADES nevertheless argues that the juvenile court erred in its
    ruling against termination because “all six of the Michael J. factors
    supported termination of Father’s rights.” But “there is no threshold level
    under each individual factor in Michael J. that either compels, or forbids,
    severance.” Christy 
    C., 214 Ariz. at 450
    15, 153 P.3d at 1079
    . “It is an
    individualized, fact-specific inquiry.” 
    Id. The critical
    factor for the juvenile
    court was that Father would be released from prison within months after
    the severance trial, so the court had ample reason to find that ADES had
    not proven by clear and convincing evidence that Father’s incarceration
    would deprive Child of a normal home for a period of years, even if some
    of the Michael J. factors might counsel termination.
    ¶18           Although the juvenile court did not expressly review or
    make findings on each Michael J. factor other than the length of Father’s
    sentence and his anticipated release date (the fourth Michael J. factor), the
    evidence presented at the trial would have allowed the juvenile court to
    find that the remaining factors weighed against termination of Father’s
    parental rights. On the first factor—the length and strength of the parent-
    child relationship when Father was incarcerated—admittedly the evidence
    showed that Father had no relationship with Child at the beginning of his
    7
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    prison sentence. But this was because Child was not yet born. And once
    Child was born, Grandmother actively interfered with Father’s efforts to
    create a bond with Child. Cf. Calvin B. v. Brittany B., 
    232 Ariz. 292
    , 293-94 ¶
    1, 
    304 P.3d 1115
    , 1116-117 (App. 2013) (holding “that a parent who has
    persistently and substantially restricted the other parent’s interaction with
    their child may not prove abandonment based on evidence that the other
    has had only limited involvement with the child”). ADES also refused to
    give Child any of the letters that Father had written to Child. Thus, the
    court could have reasonably concluded that Father’s incarceration was not
    the sole cause of the lack of a relationship.
    ¶19           On the second factor—the degree to which the parent-child
    relationship could be continued and nurtured during the incarceration—
    the court could have reasonably found that Child and Father could build
    their relationship through telephone calls and letters for the few months
    until Father’s release from prison, and that this could continue while
    Father resided at a half-way house. On the third factor—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—the evidence
    showed that Child would be twelve years-old by the time Father was
    released, and the short time Father remained in prison would not deprive
    Child of a normal home. Father testified that he wanted to initiate a
    relationship with Child upon his release from prison. Thus, Father will
    have several years before Child becomes an adult to establish a normal
    home for her.
    ¶20           On the fifth factor—the availability of another parent to
    provide a normal home life—Mother’s whereabouts were unknown, and
    the juvenile court terminated her parental rights after she did not contest
    severance. Moreover, although Grandmother had served as a parent for
    Child and apparently wished to adopt Child, the record shows that
    Grandmother had difficulty raising Child. Child’s guardian ad litem
    feared that Child would be returned to ADES custody in the future,
    “whether or not that’s after an adoption.”
    ¶21          On the sixth factor—the effect of deprivation of a parental
    presence—Child’s guardian ad litem stated that Child gave conflicting
    statements about having Father’s rights severed and that she was too
    immature to know the consequences of severing Father’s rights. Because
    Child might decide that she wants a relationship with Father after contact
    with him, a possibility that would be foreclosed if severance were granted,
    the guardian urged that severance be denied. These were valid concerns
    8
    ADES v. ROCKY J., O.K.
    Opinion of the Court
    about depriving Child of the opportunity of a relationship with Father
    that the court could have found warranted denying termination.
    ¶22            Contrary to ADES’s argument, reasoned consideration of the
    Michael J. factors in this case does not compel a conclusion that severance
    is warranted pursuant to § 8–533(B)(4). Based on the evidence presented
    the trial, the juvenile court did not err in concluding that ADES did not
    prove that Father’s sentence would deprive Child of a normal home for a
    period of years.
    CONCLUSION
    ¶23          For the foregoing reasons, we affirm.
    :MJT
    9