Jesus R. v. Dcs, J.R. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESUS R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.R., Appellees.
No. 1 CA-JV 17-0179
FILED 9-28-2017
Appeal from the Superior Court in Maricopa County
No. JD32033
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee, Department of Child Safety
JESUS R. v. DCS, J.R.
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
D O W N I E, Judge:
¶1 Jesus R. (“Father”) appeals from an order terminating his
parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 J.R. was born in January 2016. The Department of Child
Safety (“DCS”) took custody of him based on a report that he and his
mother had both tested positive for methamphetamine.1
¶3 After J.R. was released from the hospital, DCS placed him
with his maternal great-grandmother. Father visited J.R. twice before
beginning a five-year prison sentence for possession or use of dangerous
drugs, a class 4 felony. While incarcerated, Father wrote to J.R. and sent
funds for his support totaling $109.
¶4 On August 25, 2016, DCS moved to terminate Father’s
parental rights under Arizona Revised Statutes (“A.R.S.”) section
8-533(B)(4). A contested severance hearing was held, and the juvenile
court thereafter terminated Father’s parental rights. We have jurisdiction
over Father’s timely appeal pursuant to A.R.S. §§ 8-235(A),
12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶5 As relevant here, a court may terminate parental rights if it
finds, by clear and convincing evidence, 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
1 Mother’s parental rights were terminated in a separate proceeding,
and she is not a party to this appeal.
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JESUS R. v. DCS, J.R.
Decision of the Court
for a period of years.”2 A.R.S. § 8-533(B)(4); Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22 (2005) (clear and convincing evidence standard). Courts
must consider “all relevant factors” when determining whether a prison
sentence will deprive a child of a normal home for a period of years,
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. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251–52, ¶ 29 (2000).
¶6 Citing the Michael J. factors, the juvenile court found: (1)
Father never had a “real relationship” with J.R. due to his nearly
continuous incarceration since the child’s birth; (2) Father “has been
unable and will be unable to truly parent and bond” with J.R. until his
release from prison, when J.R. will be approximately five years old; (3)
because Mother’s rights were also terminated, there is no other parent
available to provide a normal home; and (4) “Father’s incarceration has
and will deprive the child of a normal home for the vast majority of his
young life. . . . [and] has left the child in limbo and uncertainty.”
¶7 Father does not challenge any of these factual findings. He
argues instead that he has broken his “cycle of drug abuse” since being
incarcerated and “has attempted to better himself, in preparation for
future full time parenting.” But while such actions are laudable, the
relevant focus under the statute is on the child and whether he will be
“deprived of a normal home for a period of years.” A.R.S. § 8-533(B)(4).
The record amply supports the juvenile court’s finding that J.R. needs
2 The court must also find by a preponderance of the evidence that
termination is in the child’s best interests. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22 (2005). Because Father has not challenged the best interests
determination, we do not address that requirement. See State v. Moody,
208 Ariz. 424, 452 n.9, ¶ 101 (2004) (claims not raised in an opening brief
are waived).
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JESUS R. v. DCS, J.R.
Decision of the Court
permanency “and should not be placed on hold for an additional 3 to four
years to await Father’s release as well as the time necessary for Father to
develop a parental bond, to demonstrate his sobriety outside of prison
and to demonstrate the stability necessary to parent.” This is especially
true because J.R. has no other available parent and will, if required to
await Father’s release from prison, have been without a parent from
infancy until the age of four or five.
CONCLUSION
¶8 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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