Cassandra P. v. Dcs, J.P. ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CASSANDRA P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.P., Appellees.
No. 1 CA-JV 14-0123
FILED 09-23-2014
Appeal from the Superior Court in Maricopa County
No. JD14852
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL
John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
CASSANDRA P. v. DCS, J.P.
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.
C A T T A N I, Judge:
¶1 Cassandra P. (“Mother”) appeals from the superior court’s
order terminating her parental rights as to her son J.P. Mother argues the
court erred by terminating her parental rights based on length of felony
sentence and by declining to offer her a “less restrictive alternative” than
severance. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 J.P., born in November 2012, is the biological son of Mother
and Joseph F. (“Father”).1 Mother had three other biological children before
J.P.: one was adopted soon after birth, one is in a permanent guardianship
with Mother’s grandmother, and one resides with his father and his father’s
family pursuant to a sole custody/guardianship arrangement. The
Department of Child Safety (“DCS”)2 took J.P. into custody in June 2013
when Mother was arrested on drug charges. Two months later, the superior
court found J.P. to be dependent as to Mother. Although Mother has
requested visitation, she has not been permitted in-person contact with J.P.
since her arrest.
¶3 Mother’s current felony convictions stem from two separate
incidents. In May 2013, Mother was found with methamphetamine, a
digital scale, and $1,165 in her purse; she was arrested for possession and
sale of dangerous drugs. Two months later, in June 2013, Mother was again
1 Although involved in the superior court proceedings, Father is not a
party to this appeal.
2 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), DCS has replaced the Arizona Department of Economic
Security (“ADES”) in this matter. For consistency, we refer to DCS in this
decision even where, at the time, actions were taken by ADES.
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CASSANDRA P. v. DCS, J.P.
Decision of the Court
arrested for possession of methamphetamine when police found the drug
in her apartment; J.P. was in the apartment at the time.
¶4 Mother eventually entered guilty pleas to conspiracy to
commit sale or transportation of dangerous drugs (arising from the May
incident) and to possession or use of dangerous drugs (arising from the
June incident). She was sentenced to concurrent terms of imprisonment,
the greater of which is four years. Mother’s scheduled release date is in
June 2017, although she may be eligible for early release in September 2016
or through a transition program in June 2016.
¶5 After Mother’s arrest, a DCS case manager contacted her and
encouraged her to participate in services available during her incarceration.
Mother in fact participated in substantial services in prison, including a
series of classes addressing life skills, parenting, domestic violence, and
reentry; a program addressing addictive behavior; Narcotics Anonymous;
and distance learning college courses.
¶6 Mother testified that, prior to her arrest, she had a very strong
bond with J.P. Father characterized Mother as a good and attentive mother
to J.P. prior to her incarceration, but Father acknowledged he was aware
that Mother was using methamphetamine during that time period.
Although DCS did not perform a bonding assessment, the case manager
expressed doubt about the strength of the relationship between Mother and
J.P. because of J.P.’s age (under seven months old at the time of Mother’s
arrest). The case manager also expressed concern that, due to Mother’s
incarceration, she would not be able to “be there for [J.P.] day to day. She
can’t meet his basic needs while she’s incarcerated.” Although Mother
requested visitation with J.P., DCS did not schedule in-person visits
because a mental health professional who conducted a psychological
evaluation concluded that visitation would not be in J.P.’s best interests due
to his young age and the length of time Mother would remain incarcerated.
Mother’s half-sister, with whom J.P. had been placed, was not
independently willing to facilitate visits in prison. Mother has sent J.P.
cards, gifts, and letters while she has been incarcerated.
¶7 After a severance hearing, the superior court terminated
Mother’s parental rights as to J.P. on the ground that Mother’s felony
sentences would deprive J.P. of a normal home for a period of years. See
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CASSANDRA P. v. DCS, J.P.
Decision of the Court
Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(4).3 Mother timely appealed, and we
have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶8 The superior court may terminate the parent–child
relationship if clear and convincing evidence establishes at least one
statutory ground for severance and if 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, 110 P.3d 1013, 1018 (2005). We
review the superior court’s severance ruling for an abuse of discretion,
accepting the court’s factual findings unless clearly erroneous and viewing
the evidence in the light most favorable to sustaining the court’s findings.
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47
(App. 2004); Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181
P.3d 1126, 1127 (App. 2008). We similarly defer to the superior court’s
credibility judgments. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4, 53 P.3d 203, 205 (App. 2002).
¶9 The statutory ground of severance due to length of felony
sentence requires proof that an incarcerated parent’s 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 alone is not
dispositive. Jesus M., 203 Ariz. at 281, ¶ 9, 53 P.3d at 206. Instead, the
superior court must engage in a fact-intensive analysis of all relevant
circumstances, including consideration of six factors set forth by our
supreme court in Michael J. v. Arizona Department of Economic Security:
(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.
196 Ariz. 246, 251–52, ¶ 29, 995 P.2d 682, 687–88 (2000). Although the court
must consider each of these factors, it is not required to make explicit factual
3 Absent material revisions after the relevant date, we cite a statute’s
current version.
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CASSANDRA P. v. DCS, J.P.
Decision of the Court
findings regarding each one. Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz.
437, 441, ¶ 14, 323 P.3d 720, 724 (App. 2014).
¶10 Mother argues that the court erred by determining severance
was warranted due to the length of her felony sentence.4 She argues that
she had a strong relationship with J.P. prior to incarceration, that she could
(with visitation) build the relationship even while in prison, and that her
sentence was relatively short. Although Mother’s testimony suggests that
she has performed admirably by participating in services and by pursuing
educational opportunities while incarcerated, the record nevertheless
supports the superior court’s severance ruling.
¶11 Even accepting that Mother’s bond with J.P. was strong, their
pre-incarceration relationship was of only short duration, since J.P. was
under seven months old when Mother was arrested and taken into custody.
Nurturing the relationship during Mother’s incarceration would be
difficult at best. And the mental health professional who conducted a
psychological evaluation recommended against visitation while Mother
remained incarcerated. Although Mother regularly sent J.P. cards, letters,
and gifts, given J.P. young age, written correspondence can provide only a
limited connection and bond.
¶12 Mother’s incarceration will deprive J.P. of a stable home life.
J.P. was under seven months old when Mother was arrested and will be
over four and one-half years old by the time Mother is scheduled to be
released. Even at the time of Mother’s earliest possible release in June 2016,
J.P. would be over three and one-half years old and would have lived
without any parent for almost three years. Although Mother characterizes
her four-year sentence as “relatively short,” it nevertheless spans “a period
of years.”
¶13 Additionally, because the terms of Father’s lifetime probation
prohibit any contact with J.P., there is no other parent available to care for
J.P. while Mother is incarcerated. Accordingly, and because Mother’s
incarceration prevents her from meeting J.P.’s basic needs, the record
supports the superior court’s conclusion that severance was warranted
under A.R.S. § 8-533(B)(4) based on the length of Mother’s felony sentence.
¶14 Mother argues that the superior court erred by failing to offer
a “less restrictive alternative” than severance. She suggests that, if J.P. were
4 Mother’s argument focuses only on the statutory ground for
severance; she does not contest the superior court’s best interests finding.
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CASSANDRA P. v. DCS, J.P.
Decision of the Court
placed with maternal grandmother rather than Mother’s half-sister, the
grandmother would facilitate visitation, which in turn would foster the
relationship between J.P. and Mother. Even assuming that the court should
consider a less restrictive alternative to termination of parental rights,
Mother’s suggestion is simply too speculative, and she does not address the
concerns raised in the psychological consultation recommending against
visitation. Nor does Mother address the fact that J.P.’s grandmother, who
cared for him for a few days immediately after Mother’s arrest, suggested
that J.P.’s aunt “was better equipped to care for [J.P.] at that time.”
CONCLUSION
¶15 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights as to J.P.
:gsh
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