Cristian R. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CRISTIAN R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.R., L.R., Appellees.
No. 1 CA-JV 15-0368
FILED 5-24-2016
Appeal from the Superior Court in Maricopa County
No. JD22995
The Honorable John R. Ditsworth, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Carol Salvati
Counsel for Appellee
CRISTIAN R. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.
G O U L D, Judge:
¶1 Cristian R. (“Father”) appeals from the juvenile court’s order
terminating his parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 K.R., born July 2010, and L.R., born May 2012, are the
biological children of Father. In October 2011, before the birth of L.R.,
Father pled guilty to felony DUI, aggravated assault and felony flight from
law enforcement. He was sentenced to prison with an early release date in
2017 and a maximum release date in March 2018.
¶3 During his incarceration, Father has had no personal visits
with the Children. Father also has not requested the Department of Child
Safety (“DCS”) to schedule visits with the Children. Father has, however,
written letters and sent gifts to the Children.
¶4 After Father was incarcerated, the Children were removed
from Mother’s1 care and declared dependent. DCS subsequently filed a
petition to terminate Father’s rights, alleging abandonment and length of
incarceration as statutory grounds for termination. Ariz. Rev. Stat.
(“A.R.S.) sections 8-533(B)(1), (4).
¶5 Following a trial, the juvenile court terminated Father’s rights
on the grounds of length of incarceration.2 Father timely appealed.
DISCUSSION
I. Statutory Grounds for Severance
1 Mother’s rights were severed November 6, 2015; she is not a party to
this appeal.
2 DCS dismissed the allegation of abandonment at trial.
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CRISTIAN R. v. DCS, et al.
Decision of the Court
¶6 Father argues the juvenile court erred in terminating his
rights because the state failed to prove the statutory ground of length of
incarceration by clear and convincing evidence.
¶7 To justify termination of a parent’s rights, the juvenile court
must determine clear and convincing evidence exists as to at least one of
the grounds under A.R.S. § 8–533(B). Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). “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). As a result, we review the juvenile court’s termination of
parental rights for an abuse of discretion and will affirm the court’s findings
if they are supported by reasonable evidence. Mary Lou C. v. Ariz. Dep’t of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
¶8 Pursuant to A.R.S. § 8-533(B)(4), a parent’s rights can be
terminated if:
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.
¶9 In terminating parental rights based on incarceration, “the
length of a parent’s sentence is not dispositive,” and “the juvenile court
must consider the many facts and circumstances specific to each case.” Jesus
M., 203 Ariz. at 281, ¶ 9. The focus of the court’s inquiry is “on the child’s
needs during the incarceration and not solely on whether the parent would
be able to continue the parent-child relationship after release.” Jeffrey P. v.
Dep't of Child Safety, 1 CA-JV 15-0031, 2016 WL 792337, at *4, ¶ 14 (App.
Mar. 1, 2016). Courts may consider several factors in making this
determination, 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.
Michael J., 196 Ariz. at 251-52, ¶ 29.
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CRISTIAN R. v. DCS, et al.
Decision of the Court
¶10 The record supports the juvenile court’s decision. Father was
deprived of his civil liberties due to a felony conviction. Father testified he
will be released sometime in 2017, but his maximum release date is March
2018. See Jeffrey P., 1 CA-JV 15-0031, 2016 WL 792337 at *2, ¶ 8 (holding
“[n]o authority requires the court to presume an early release.”)
¶11 The record also shows Father does not have a strong
relationship with the Children. Father has never met L.R.; he was
incarcerated before she was born. Similarly, K.R. was one-year-old when
Father was incarcerated, and the juvenile court did not find credible his
claim he was active in K.R.’s life before his incarceration. Additionally,
Father has not seen the Children since his incarceration, and he has not
requested visitation from DCS. We find no error.
II. Best Interests
¶12 Father also argues (1) insufficient evidence supports the
juvenile court’s best interest finding, and (2) the juvenile court’s finding is
insufficient.
¶13 Before a juvenile court may terminate a parent’s rights it must
consider the best interests of the child. A.R.S. § 8-533(B). We have held “the
best interests of the child . . . may be established by either showing an
affirmative benefit to the child by removal or a detriment to the child by
continuing in the relationship.” Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189
Ariz. 553, 557 (App. 1997); see also In re Maricopa Cty. Juvenile Action No. JS–
500274, 167 Ariz. 1, 6-7 (1990). In making this determination, the juvenile
court may consider whether the children are adoptable and whether their
current placement is meeting their needs. Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998).
¶14 Sufficient evidence shows that termination is in the Children’s
best interests. Based on Father’s incarceration, the Children have been
deprived of a normal home.3 Father has been imprisoned all of L.R.’s life
and the majority of K.R.’s life, and he has not developed a strong, stable
relationship with the Children. In addition, the Children are thriving in
3 We recognize that Father is not solely responsible for this fact, and
that Mother bears, to a greater or lesser extent, some responsibility for this
situation. We also note that Father has made an effort, by writing letters
and arranging for Christmas presents, to start a relationship with the
Children, and we respect those efforts.
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CRISTIAN R. v. DCS, et al.
Decision of the Court
their current placement; all of their needs are met, and their placement is
willing to adopt them.
¶15 We also conclude the juvenile court made sufficient best
interest findings. See Ariz. R.P. Juv. Ct. 66(F)(2)(a) (a juvenile court must
make specific, written findings of fact and conclusions of law in support of
its termination decision); A.R.S. § 8-538 (A) (same). Here, the juvenile court
specifically found the Children are “thriving” in their current placement,
thereby concluding their current placement is meeting their needs.
CONCLUSION
¶16 For the reasons above, we affirm the juvenile court’s
termination of Father’s parental rights.
:ama
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