Justin M. v. April M. ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JUSTIN M., Appellant,
v.
APRIL M., T.M., N.M., D.M., Appellees.
No. 1 CA-JV 16-0523
FILED 5-23-2017
Appeal from the Superior Court in Maricopa County
No. JS518028
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
April M., Mesa
Appellee
JUSTIN M. v. APRIL M., et al.
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.
B E E N E, Judge:
¶1 Justin M. (“Father”) appeals an order terminating his parental
rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the biological parent of T.M., N.M., and D.M.
(“Children”). In 2010, Father married April M. (“Mother”), and soon after,
they had two children, T.M. and N.M. In 2013, Father was arrested for
domestic violence after assaulting Mother. Father was sentenced to one
year incarceration for charges stemming from the event. Following his
release, Father and Mother had another child together, D.M.
¶3 In 2015, Father was convicted of burglary and sentenced to
seven years’ incarceration. During Father’s incarceration, he tested positive
for drugs on multiple occasions. Following Father’s positive drug tests,
Mother filed for divorce, which was finalized in September 2016. Mother
obtained sole legal decision-making authority regarding the Children and
Father’s parenting time with the Children was at Mother’s discretion.
¶4 On June 1, 2016, Mother filed a petition to terminate Father’s
parental rights on several grounds, including the length of incarceration for
a felony conviction that would deprive the Children of a normal home for
a period of years.1 Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(4) (2017).2
1 We need only address one of the statutory grounds for termination
found by the superior court. See Kent K. v. Bobby M., 210 Ariz. 279, 282, ¶ 9
(2005) (only one statutory ground necessary to satisfy § 8-533).
2 Absent material revision after the relevant date, we cite a statute’s
current version.
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JUSTIN M. v. APRIL M., et al.
Decision of the Court
¶5 After a contested termination hearing, the superior court
found by clear and convincing evidence that Father’s conviction and
incarceration for seven years was a valid basis for termination, and found
by a preponderance of the evidence that it was in the Children’s best
interests to terminate Father’s parental rights. Father timely appealed the
termination. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1)
(2017) and 8–235(A) (2017).
DISCUSSION
¶6 The fundamental right to parent one’s child is not absolute.
Kent K., at 284, ¶ 24. The superior court may terminate parental rights if it
finds, “by clear and convincing evidence, at least one of the statutory
grounds set out in section 8–533,”and by a preponderance of the evidence
that termination is in the best interest of the child. Michael J. v. Ariz. Dep't
of Econ. Sec., 196 Ariz. 246, 248–49, ¶ 12 (2000). We review an order
terminating parental rights for an abuse of discretion and will not reverse
unless “there is no reasonable evidence to support” the order. Mary Lou C.
v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Father’s parental rights were terminated pursuant to A.R.S. §
8-533(B)(4) because his term of imprisonment was of such length that the
Children would be deprived of a normal home for a period of years. There
is no “bright line” defining how long a sentence must be to deprive a child
of a normal home for a “period of years,” and each case must be determined
based on its “particular facts.” Michael J., 196 Ariz. at 251, ¶ 29. The
superior court may look to 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.
Id. at 251-52, ¶ 29.
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JUSTIN M. v. APRIL M., et al.
Decision of the Court
¶7 Father was incarcerated in 2015, and the earliest date he could
be released is December 2020. Because of Father’s domestic violence and
burglary convictions, he has been incarcerated for the majority of the
Children’s lives.
¶8 Due to Father’s continued drug use, the superior court found
that Father was not willing to take steps necessary to maintain a healthy
relationship with the Children. We defer to a trial court’s findings because
it is “in the best position to weigh the evidence, judge the credibility of the
parties, observe the parties, and make appropriate factual findings.” In re
Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987). We
find no error in the superior court’s finding that clear and convincing
evidence demonstrates a valid basis for termination under § 8-533(B)(4).
¶9 The superior court also determined by a preponderance of the
evidence that termination of Father’s parental rights was in the Children’s
best interests. “[I]n a private proceeding to sever parental rights, just as in
state-initiated proceedings, a juvenile court may conclude that a proposed
adoption benefits the child and supports a finding that severance is in the
child’s best interests.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2, ¶ 1 (2016).
In considering a child's best interests, the superior court is tasked with
balancing “the unfit parent’s diluted interest against the independent and
often adverse interests of the child in a safe and stable home life.” Id. at 4,
¶ 15.
¶10 The superior court found by a preponderance of the evidence
that termination of Father’s parental rights would benefit the Children by
allowing Mother to care for the Children without Father’s highly disruptive
influence. We conclude that sufficient evidence supports the superior
court’s finding that termination of Father’s parental rights is in the
Children’s best interests.
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JUSTIN M. v. APRIL M., et al.
Decision of the Court
CONCLUSION
¶11 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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