Timothy B. v. dcs/h.B.

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
TIMOTHY B.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, H.B.,
Appellees.
No. CV-20-0318-PR
Filed March 7, 2022
Appeal from the Superior Court in Maricopa County
The Honorable Michael D. Gordon, Judge
No. JD33713
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
250 Ariz. 139 (App. 2020)
VACATED
COUNSEL:
David W. Bell, Law Office of David W. Bell, Mesa; Steven Czop (argued),
Czop Law Firm, PLLC, Higley, Attorneys for Timothy B.
Mark Brnovich, Arizona Attorney General, Drew C. Ensign, Section Chief,
Civil Appeals, Dawn R. Williams (argued), Autumn Spritzer, Assistant
Attorneys General, Tucson, Attorneys for Department of Child Safety
TIMOTHY B. V. DCS/H.B.
Opinion of the Court
VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which
JUSTICES LOPEZ, BEENE, and KING joined. JUSTICE BOLICK
concurred in the result. *
VICE CHIEF JUSTICE TIMMER, opinion of the Court:
¶1 The juvenile court can terminate the parent-child relationship
if at least one ground listed in A.R.S. § 8-533(B) exists, and termination is in
the child’s best interests. See Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
149–50 ¶ 8 (2018). The length-of-sentence ground for termination is
proven if an incarcerated parent’s sentence is so lengthy that “the child will
be deprived of a normal home for a period of years.” § 8-533(B)(4). What
is a “normal home”? That is the primary question before us.
BACKGROUND
¶2 H.B. was born in September 2012 and initially lived with her
father, Timothy B., her mother, Jaliece J., and her half-siblings. When H.B.
was two-and-one-half years old, Timothy was convicted of several felony
charges, including kidnapping, attempted sexual assault, unlawful flight
from law enforcement, and aggravated assault. The superior court
sentenced him to 12.5 years in prison and imposed lifetime probation upon
his release, which will occur in 2024 when H.B. is eleven years old.
¶3 After Timothy was incarcerated, H.B. lived with her paternal
grandmother and paternal aunt for the next few years. During that time,
they facilitated extensive contact between Timothy and H.B. Timothy
frequently spoke with his daughter by telephone, wrote to her often, and
had regular in-person visits with her. Neither the grandmother nor the
aunt established a legal responsibility to care for H.B. through a
guardianship. See A.R.S. § 8-871(A) (authorizing permanent
guardianships).
*
Chief Justice Brutinel and Justice Montgomery are recused from this
matter.
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Opinion of the Court
¶4 H.B. also spent time with Jaliece, who lived with H.B.’s half-
siblings and another man. The Arizona Department of Child Safety
(“DCS”) became involved in January 2017 when Jaliece was arrested while
H.B. was visiting. After an investigation revealed child neglect and other
issues, DCS removed the children, including H.B., from Jaliece’s custody.
¶5 The juvenile court found H.B. and her half-siblings dependent
as to Jaliece and their respective fathers. H.B.’s paternal aunt asked that
H.B. be placed with her, but that request was denied because the aunt lived
with the paternal grandmother, who did not pass a background check.
Instead, the court granted DCS’s request that H.B. be placed with Jaliece’s
friend, who had known H.B. since birth. During H.B.’s lengthy
dependency, she spoke with Timothy weekly and visited him monthly.
¶6 DCS was unable to successfully reunify Jaliece with her
children after two years of providing services, and the court approved a
change in case plan to severance and adoption. DCS sought to terminate
Timothy’s parental rights pursuant to the length-of-sentence ground listed
in § 8-533(B)(4). After a multiple-day evidentiary hearing held over a few
months in 2019, the court found that DCS had proved this ground and that
termination was in H.B.’s best interests. 1 It therefore terminated
Timothy’s parental rights to H.B.
¶7 In considering the length-of-sentence ground, the court relied
on In re Appeal in Maricopa County Juvenile Action No. JS-5609, 149 Ariz. 573,
575 (App. 1986), which found that “[t]he ‘normal home’ referred to in the
statute relates to [an incarcerated parent’s] obligation to provide a normal
home, a home in which the [incarcerated parent] has a presence, and it does
not refer to a ‘normal home’ environment created by [others].” The court
also considered non-exclusive factors set forth in Michael J. v. Arizona
Department of Economic Security, 196 Ariz. 246, 251–52 ¶ 29 (2000):
(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
1 In the same ruling, the court terminated Jaliece’s rights to H.B.
Jaliece did not appeal, and therefore the propriety of the court’s termination
of her rights is not before us.
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Opinion of the Court
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.
In applying these factors, the court found that on the one hand, Timothy
and H.B. enjoy a “fairly strong relationship” and that “[Timothy] has done
all he can to maintain and nurture his relationship with [H.B.].” The court
remarked on their “strong bond”; “frequent telephone contact”; regular
visits, which included helping H.B. with homework; and exchanges of
cards, gifts, letters, poetry, and drawings. According to the court,
Timothy clearly loves his daughter, is “kind and attentive,” and both H.B.
and Timothy enjoy visitation.
¶8 On the other hand, the court found that Timothy’s love and
care is insufficient to meet H.B.’s needs. The court observed that “[H.B.]
has no parent available to walk her to school, to teach her how to ride a
bicycle, go to school functions, and help with homework on a regular basis”
and that Timothy “has been and remains unavailable for [H.B.’s] daily care
and for milestone events.” It also found that the nature of Timothy’s
convictions made it unlikely he would be able to parent immediately
following release from custody, and that he could be reincarcerated if he
violates probation.
¶9 The court concluded that while Timothy’s efforts have been
“extraordinary and laudable,” his incarceration has and will continue to
deprive H.B. “of her father’s everyday guidance, care and support” for over
half her childhood, meaning she is deprived of a normal home for a period
of years, thereby demonstrating the length-of-sentence ground for
termination under § 8-533(B)(4).
¶10 Turning to H.B.’s best interests, the court focused “solely” on
her interests under “the totality of the circumstances.” It found that H.B.
is happy in an adoptive placement with a younger half-sister, and the
placement meets all her needs; the placement will ensure that H.B. regularly
visits her other half-siblings; and absent termination, H.B. would “languish
further awaiting for [her] father to be released from custody with a hope
that [he] may be ready to safely parent [her].”
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Opinion of the Court
¶11 The court of appeals vacated the juvenile court’s termination
order as it relates to Timothy and remanded for reconsideration, citing two
errors. See Timothy B. v. Dep’t of Child Safety, 250 Ariz. 139, 141 ¶ 1 (App.
2020). First, it concluded the juvenile court mistakenly relied on the
definition of “normal home” announced in JS-5609, characterizing that
definition as overly rigid by failing to recognize “that a ‘normal home’ may
include a parent with a non-traditional presence.” See Timothy B., 250
Ariz. at 144 ¶ 18. Second, it found that the juvenile court had erred by
using a best-interests inquiry focusing “solely on the children’s best interest”
rather than “balanc[ing] the interests of both the child and the parent.” Id.
at 145–46 ¶ 21.
¶12 We granted DCS’s petition for review to provide guidance on
what constitutes a “normal home” under § 8-533(B)(4) and to clarify the
best-interests inquiry, both recurring issues of statewide importance.
DISCUSSION
I.
¶13 The juvenile court conducts a two-step inquiry in determining
whether to terminate the parent-child relationship. See Alma S., 245 Ariz.
at 149–50 ¶ 8. First, the court must decide whether clear and convincing
evidence demonstrates at least one ground listed in § 8-533(B). Id. at 149
¶ 8. The grounds listed establish parental unfitness by showing a parent’s
inability to properly parent, a voluntary relinquishment of parental rights,
or actions that forfeit a parent’s right to contest severance. Id. at 150 ¶¶ 9–
10. Second, assuming a § 8-533(B) ground exists, the court must decide
whether a preponderance of evidence supports a finding that termination
is in the child’s best interests. Id. at 149–50 ¶ 8.
¶14 We will affirm a termination order unless the juvenile court
abuses its discretion or the court’s findings are not supported by reasonable
evidence. Jessie D. v. Dep’t of Child Safety, 251 Ariz. 574, 579 ¶ 10 (2021).
A court abuses its discretion by misapplying the law. State v. Miles, 243
Ariz. 511, 513 ¶ 7 (2018).
A.
¶15 The length-of-sentence ground for termination provides, in
relevant part, that termination is justified when “the parent is deprived of
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civil liberties due to the conviction of a felony . . . [and] 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). DCS argues the court of appeals
misinterpreted “normal home” as possibly including a home where the
incarcerated parent has a non-traditional presence. It asserts the court
conflated the Michael J. factors and “improperly magnifie[d] the importance
of the child’s need to maintain a relationship with his or her incarcerated
parent while ignoring the importance of the child’s other needs” that an
in-home parent typically addresses.
¶16 We review the meaning of § 8-533(B) de novo. See Rasor v.
Nw. Hosp., LLC, 243 Ariz. 160, 163 ¶ 11 (2017). Our primary goal is
effectuating the legislature’s intent. Id. at 164 ¶ 20. If the statutory
language has only one reasonable interpretation when read in context, we
apply that interpretation without further analysis. Id. Where more than
one reasonable interpretation exists, we employ secondary interpretive
principles, such as examining legislative history, any statutes relating to the
same subject or general purpose, the effects and consequences of differing
interpretations, and the spirit and purpose of the statute. See id.;
Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017).
¶17 “Normal home” as used in § 8-533(B)(4) has more than one
reasonable interpretation. The legislature did not define the term, and
what constitutes a “normal home”—whether referring to a physical
structure or the environment created by its inhabitants—is not plainly
evident in our diverse society. See Normal, Merriam-Webster,
https://www.merriam-webster.com/dictionary/normal (last visited Feb.
3, 2022) (defining “normal” in part as “conforming to a type, standard, or
regular pattern” or “characterized by that which is considered usual,
typical, or routine”); Home, Merriam-Webster, https://www.merriam-
webster.com/dictionary/home (last visited Feb. 3, 2022) (defining “home”
in part as “the house or apartment where a person lives” or “a family living
together”). Indeed, underscoring this lack of plain meaning, neither the
parties nor the court of appeals identifies the meaning of “normal home.”
And although the court of appeals in JS-5609 defined “normal home,” it did
so without any analysis. See JS-5609, 149 Ariz. at 575.
¶18 Applying secondary interpretive principles reveals the
legislature’s intended meaning of “normal home.” We start by examining
§ 8-533’s legislative history and the legislature’s stated purpose in enacting
the statutes governing termination of the parent-child relationship. See
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Rasor, 243 Ariz. at 164 ¶ 20; Special Fund Div. v. Indus. Comm’n of Ariz., 191
Ariz. 149, 153 ¶ 10 (1998) (considering legislative purpose to interpret
statute).
¶19 Before 1970, Arizona did not have a separate statutory scheme
for terminating the parent-child relationship. Instead, termination
occurred in the context of adoption, with or without the “natural” parent’s
consent. 2 See, e.g., A.R.S. Part IV § 17-1193 (1913) (excepting the
requirement that the natural parent must consent before the court may
enter an adoption order if “the court determines that the interest of the child
will be promoted thereby”); A.R.S. § 8-104 (1956) (same), -108(A) (1956)
(providing that “the child shall no longer be the child or heir of the natural
parents” upon entry of the adoption order). Outside the adoption context,
the state department of health licensed public and private child welfare
agencies to care for neglected children or place them in a “family home” or
an institution, see A.R.S. §§ 8-501, -506 (1956), and also certified foster homes
to care for such children, see A.R.S. §§ 8-513 to -515 (1956). Parental rights
were not terminated when children were placed in family homes,
institutions, or foster homes. See §§ 8-501 to -518 (1956).
¶20 In 1970, the legislature ended the practice of maintaining the
parent-child relationship during long-term institutional or foster care by
prescribing termination procedures. See 1970 Ariz. Sess. Laws ch. 153, § 1
(2nd Reg. Sess.). These procedures were designed to “safeguard the rights
and interests of all parties concerned and promote their welfare and that of
the state.” Id. The act reflected a “philosophy that, wherever possible,
family life should be strengthened and preserved” and acknowledged that
the termination issue was so vitally important that “a judicial determination
[should be made] in place of attempts at severance by contractual
arrangements, express or implied, for the surrender or relinquishment of
children.” Id.
¶21 The 1970 act authorized termination of a parent-child
relationship if any one of several grounds existed. See A.R.S. § 8-533
(1970). This original version of § 8-533 included a length-of-sentence
ground as a basis for termination that is substantively identical to present-
2 The legislature required consent from the parent or a statutory
equivalent from 1933 to 1952. See Westerlund v. Croaff, 68 Ariz. 36, 41
(1948); 1952 Ariz. Sess. Laws ch. 96, § 3 (2nd Reg. Sess.).
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day § 8-533(B)(4). See § 8-533(4) (1970) (authorizing termination when
“the parent is deprived of his civil liberties due to the conviction of a
felony . . . if the sentence of such parent is of such length that the child will
be deprived of a normal home for a period of years”). Contrary to today’s
requirement, termination could be ordered without separately considering
the child’s best interests. See A.R.S. § 8-538(B) (1970).
¶22 In 1986, the legislature reenacted § 8-533 and other statutes
related to foster care. See 1986 Ariz. Sess. Laws ch. 205, § 1 (2nd Reg. Sess.).
The act’s stated purpose was “to expedite the adoption of numerous
children who remain in temporary foster care for indeterminate lengths of
time with no hope of being returned to their natural parents and, in so
doing, promote a stable and long-term family environment for these
children.” Id. The 1986 act authorized termination if any one ground
listed in § 8-533(B) was present, including the length-of-sentence ground
existing today. See A.R.S. § 8-533(B)(4) (1986). The court was permitted
to “also consider the needs of the child” in deciding whether to terminate
parental rights. See § 8-533(B) (1986).
¶23 The legislature has amended § 8-533 many times since 1986,
including adding the best-interests inquiry, but has kept the length-of-
sentence ground substantively intact since 1970. We deduce from
§ 8-533’s history and stated purpose that the legislature intended a “normal
home” to be “a stable and long-term family environment” outside
institutional or foster home care, which had predominantly served as living
conditions for neglected children before 1970. Indeed, the legislature’s
intent to avoid having children linger in foster care echoes throughout other
grounds justifying termination in § 8-533(B). See § 8-533(B)(3) (mental
illness and drug or alcohol issues that render the parent “unable to
discharge parental responsibilities” for a prolonged period of
time), -533(B)(8) (out-of-home placement for nine or fifteen months or six
months for a child under three), -533(B)(11) (in and out of out-of-home
placement within eighteen months).
¶24 The “normal home” does not necessarily require the
incarcerated parent’s physical presence, as the JS-5609 court concluded.
First, the legislature’s intent to strengthen and preserve familial bonds,
whenever possible, cuts against requiring the incarcerated parent’s physical
presence in the home if the child is otherwise in a stable and long-term
family environment outside foster care. See 1970 Ariz. Sess. Laws ch. 153,
§ 1 (2nd Reg. Sess.); see also A.R.S. § 1-601 (recognizing a parent’s
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Opinion of the Court
fundamental liberty interest in raising a child and directing that the state’s
justified infringement on that right be “narrowly tailored and . . . not
otherwise served by a less restrictive means”); Santosky v. Kramer, 455 U.S.
745, 753 (1982) (recognizing that parents have a fundamental liberty interest
in “the care, custody, and management of their child” that “does not
evaporate simply because they have not been model parents or have lost
temporary custody of their child to the State”).
¶25 Second, the option for establishing a permanent guardianship
for dependent children without terminating parental rights evidences the
legislature’s intent that the incarcerated parent does not have to be
physically present for the child to live in a “normal home.” See A.R.S.
§ 8-862(B)(1) (permitting the court to establish a plan for permanent
guardianship at the permanency hearing rather than a plan for termination
of parental rights). The court can establish a permanent guardianship
under specified conditions, including when “termination of parental rights
would not be in the child’s best interests.” § 8-871(A)(4). A permanent
guardianship divests the birth or adoptive parent of legal custody of the
child and ends the child’s dependency, thereby removing the child from
foster care, but “does not terminate the parent’s rights.” A.R.S.
§ 8-872(H), (J). The court can tailor the guardianship to the child’s unique
best interests by ordering visitation with the birth or adoptive parent,
siblings, and other relatives, and by entering other directives as fitting. See
§§ 8-871(D), -872(I). Because we can assume as a matter of common sense
that the legislature would not intend to place a child in an “abnormal
home,” it follows that a “normal home” can consist of a home in which the
child has a permanent guardian, and the birth or adoptive parent is not
physically present in the home but has some relationship with the child that
serves the child’s best interests.
¶26 Third, we are mindful that if the birth or adoptive parent’s
physical presence is required to make a “normal home,” a prison sentence
of any “period of years” would necessarily result in termination of parental
rights. § 8-533(B)(4). If that was the legislature’s intent, it could have
simply provided as a ground for termination that the parent is imprisoned
for a period of years. The directive to also consider whether the child
would be “deprived of a normal home” would have been unnecessary
because the deprivation would inherently arise from a multiple-year prison
term. See id.; see also Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (“A
cardinal principle of statutory interpretation is to give meaning, if possible,
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to every word and provision so that no word or provision is rendered
superfluous.”).
¶27 For these reasons, we define “normal home” in § 8-533(B) as
a stable and long-term family environment outside a foster care placement,
where another parent or a permanent guardian resides and parents the
child, and where the incarcerated parent affirmatively acts to maintain a
relationship with the child that contributes to rather than detracts from the
child’s stable, family environment. When another parent is unavailable to
provide a normal home for the child for a period of years during which the
other parent is incarcerated, the juvenile court should consider whether
another person is willing to be the child’s permanent guardian and if the
grounds for a permanent guardianship exist, including that a guardianship
would be in the child’s best interests. See § 8-871(A). If so, the court
should additionally consider whether the incarcerated parent could
contribute to rather than detract from the stable, family environment
provided by the permanent guardian during incarceration. In making
these decisions, the court should consider the non-exclusive Michael J.
factors. We modify the fifth factor by adding that the court should
consider the availability of a permanent guardian to provide a normal home
life if another parent is unavailable. See Michael J., 196 Ariz. at 251–52 ¶ 29.
Considering our definition of “normal home,” we disapprove the different
definition put forth in JS-5609. 3
¶28 Turning to this case, we conclude that remand is necessary.
The juvenile court applied the definition of “normal home” from JS-5609
and grounded its ruling on Timothy’s inability to be physically present in
H.B.’s home. Thus, it did not consider whether a permanent guardianship
could provide H.B. with a “normal home” while Timothy maintained his
parental rights. Notably, in denying Timothy’s motion to change physical
3 In Jessie D., this Court cited JS-5609’s definition of “normal home” in
describing the length-of-sentence factor. See Jessie D., 251 Ariz. at 579 ¶ 9.
But what constitutes a “normal home” was not at issue in Jessie D., and the
definition did not affect our analysis. To the contrary, and arguably
forecasting our decision here, we concluded that the juvenile court there
misapplied the second Michael J. factor—whether the parental relationship
could be continued and nurtured during incarceration—by finding that an
incarcerated father “was unable to interact with the children in more
traditional settings (i.e., home, school, and recreational).” Id. at 581 ¶ 16.
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custody of H.B. to her paternal aunt, who had previously facilitated
visitation between father and daughter, the court acknowledged that H.B.
“has a bond with her [p]aternal [a]unt,” who is willing to serve as a legal
permanent guardian; the aunt’s home study “raised no concerns” and the
aunt “can fundamentally meet all [H.B.’s] needs”; and a guardianship
would “leave[] the door open for [Timothy] to demonstrate changed
circumstances.” On remand, the court should consider the permanent
guardianship option when considering the Michael J. factors and any other
relevant factors to determine whether H.B. would be deprived of a “normal
home” for a period of years by Timothy’s incarceration.
B.
¶29 The court of appeals, relying on Kent K. v. Bobby M., 210 Ariz.
279, 286 ¶ 35 (2005), concluded the juvenile court erred in conducting the
best-interests inquiry by focusing “solely” on H.B.’s best interests after
finding the length-of-sentence ground rather than “balanc[ing] the interests
of both the child and the parent.” Timothy B., 250 Ariz. at 146 ¶ 21. DCS
argues the court of appeals misinterpreted Kent K. and improperly
subordinated H.B.’s interests to Timothy’s interests by remanding to the
juvenile court to conduct “a proper balancing of H.B.’s and Timothy’s
respective interests.” See id. ¶ 22.
¶30 In Kent K., this Court recognized that once the juvenile court
finds the parent unfit due to the existence of at least one ground listed in
§ 8-533(B), the parent’s continuing interests in the care and custody of the
child become less important than the child’s best interests. See Kent K., 210
Ariz. at 286 ¶ 35. Consequently, at this stage, “the court must balance this
diluted parental interest against the independent and often adverse
interests of the child in a safe and stable home life.” Id.; see also Demetrius
L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016). The dispute here focuses on
what is required in “balancing” these interests.
¶31 The “balancing” performed by the juvenile court during the
best-interests inquiry does not pit the parent’s interests against the child’s
best interests to determine which predominate; at this stage, it is a given
that the child’s best interests predominate. See Kent K., 210 Ariz. at 286
¶ 35. As this Court has stated several times, the juvenile court’s primary
concern in the best-interests inquiry is the “child’s interest in stability and
security.” Alma S., 245 Ariz. at 150 ¶ 12 (quoting Demetrius L., 239 Ariz. at
4 ¶ 15); see Kent K., 210 Ariz. at 287 ¶ 37; see also Kent K., 210 Ariz. at 286 ¶ 35
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(“In a best interests inquiry, however, we can presume that the interests of
the parent and child diverge because the court has already found the
existence of one of the statutory grounds for termination by clear and
convincing evidence.”). In deciding what is best for the child, “balancing”
requires examining the totality of the circumstances existing at the time of
termination, including the parent’s interest in maintaining a positive
parent-child relationship and the parent’s efforts and ability to do so. See
Alma S., 245 Ariz. at 150–51 ¶ 13. Thus, “courts should consider a parent’s
rehabilitation efforts as part of the best-interests analysis.” See id. at 151
¶ 15. For example, here, in examining the totality of the circumstances, the
juvenile court should consider Timothy’s past and ongoing efforts to parent
H.B. from prison and the impact of those efforts on H.B.’s interests in a safe
and stable home life in deciding whether H.B.’s best interests are served by
termination or maintenance of the parent-child relationship. See id. at 150–
51 ¶ 13; see also Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98–99 ¶ 12
(App. 2016) (noting that bonding between a child and biological parent is a
factor but not dispositive in a best-interests analysis).
¶32 To the extent the court of appeals’ opinion suggests that a
court must give equal weight to a parent’s interest in the custody and care
of a child and the child’s interests in security and stability and then balance
those interests in making the best-interests determination, we disagree.
The juvenile court must not “subordinate the interests of the child to those
of the parent once a determination of unfitness has been made.” Alma S.,
245 Ariz. at 151 ¶ 15. The parent’s exercise of parental rights must be
viewed through a lens focused on the child’s best interests.
¶33 The juvenile court here focused “solely” on H.B.’s best
interests as distinct from Timothy’s interests in making the best-interests
determination. It is not clear from the ruling whether the court considered
Timothy’s efforts to parent H.B. from prison and the strength of the bond
between Timothy and H.B. in determining whether termination would
serve H.B.’s best interests. We need not decide whether error occurred.
If on remand the court finds the existence of the length-of-sentence ground
for termination and conducts a best-interests analysis, it should consider
Timothy’s past and ongoing efforts to parent H.B. from prison and their
impact on H.B.’s interest in a safe and stable home life.
¶34 Finally, we recognize that conducting the best-interests
inquiry after finding the length-of-sentence ground for termination may be
repetitive. Here, when the court considers the availability of a permanent
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guardianship in deciding whether Timothy’s imprisonment will deprive
H.B. of a normal home for a period of years, it may consider as a relevant
factor under the guardianship statute whether termination of Timothy’s
parental rights would be in H.B.’s best interests. See § 8-871(A)(4).
Nevertheless, even if the court concludes that a permanent guardianship is
not appropriate and finds the existence of the length-of-sentence ground for
termination, it must conduct a renewed best-interests inquiry in making the
termination decision. See § 8-533(B).
CONCLUSION
¶35 We reverse the juvenile court’s judgment and remand for a
new determination considering this opinion. We vacate the court of
appeals’ opinion.
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JUSTICE BOLICK, Concurring in the Result
BOLICK, J., concurring in the result:
¶36 I enthusiastically join the result here. Along with the recent
decision in Jessie D. v. Department of Child Safety, 251 Ariz. 574 (2021), the
Court has taken significant steps to reconcile our jurisprudence with the
fundamental rights of parents under the United States Constitution and
Arizona law. However, I write separately because the framework within
which we decide these cases still falls significantly short of constitutional
requirements.
¶37 It is uncontestable, as the Court acknowledges, supra ¶ 24, that
parents have a fundamental right to the control and upbringing of their
children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Pierce v. Soc’y
of Sisters, 268 U.S. 510, 534–35 (1925). Ordinarily, when the government
seeks to divest a fundamental right, it must demonstrate a compelling
purpose and that its means of accomplishing that purpose are narrowly
tailored. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 270 (2003).
¶38 Even more specifically, Arizona law recognizes that “[t]he
liberty of parents to direct the upbringing . . . of their children is a
fundamental right.” A.R.S. § 1-601(A). The government “shall not
infringe on these rights without demonstrating that the compelling
governmental interest as applied to the child involved is of the highest
order, is narrowly tailored and is not otherwise served by a less restrictive
means.” § 1-601(B).
¶39 In this case, the father, Timothy B., gravely jeopardized his
rights to and relationship with his daughter by committing very serious
crimes. Indeed, A.R.S. § 8-533(B)(4) provides as a basis for termination of
parental rights that “the child will be deprived of a normal home for a
period of years.”
¶40 In Jessie D., we recognized how difficult it is for a person
sentenced to incarceration for a period of years to maintain a parental
relationship and that the state must take steps to facilitate it. 251 Ariz. at
581 ¶ 17. In this case, Timothy’s determination, combined with the efforts
of both prison officials and his daughter H.B.’s caretakers, has culminated
in a deep, loving relationship between father and daughter. Indeed,
Timothy testified that prison officials enlisted him to provide classes to
other inmates hoping to nurture a parental relationship with their children.
Although H.B. clearly desires to maintain her relationship with her dad,
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TIMOTHY B. V. DCS/H.B.
JUSTICE BOLICK, Concurring in the Result
DCS determined that permanently terminating that relationship in favor of
adoption was in her best interests.
¶41 The opinion today takes two important steps to achieve a just
result in this case. First, consistent with statutory intent, it construes
“normal home” in § 8-533(B)(4) to encompass a stable home in which the
parent does not have an ongoing physical presence. Supra ¶¶ 24–27. To
hold otherwise, as the Court recognized in a similar context in Jessie D.,
“implies that incarcerated parents could never adequately maintain a
parent-child relationship with their young children.” 251 Ariz. at 581 ¶ 17.
¶42 Second, the Court requires the trial court to consider whether
a permanent guardianship is possible here as an alternative to termination.
A guardianship appointment would protect Timothy’s rights, preserve the
father-daughter relationship, and achieve the stable home environment that
DCS seeks. As such, it is a classic example of a “less restrictive means”
that Arizona law commands us to consider. § 1-601(B).
¶43 However, the overall framework the Court applies continues
to diverge from constitutional requirements. As the Court observes, in
termination cases, it applies a “two-step inquiry.” Supra ¶ 13. First, it
requires proof by clear and convincing evidence that one of the statutory
grounds for termination exists under § 8-533(B). Id. Second, it requires
evidence under the less-demanding preponderance of the evidence
standard that the termination is in the child’s best interests. Id.
¶44 In Alma S. v. Department of Child Safety, 245 Ariz. 146, 150 ¶ 10
(2018), the Court held that most grounds for termination in § 8-533(B)—
including the length of sentence ground at issue here—are “proxies for
parental unfitness.” Hence, each operates as essentially an irrebuttable
presumption, such that proof of the statutory ground satisfies the
government’s burden to terminate the parent’s fundamental right.
¶45 In Santosky, the Supreme Court observed that this first stage
of termination proceedings “entails a judicial determination that the
parents are unfit to raise their own children.” 455 U.S. at 760. At that
stage, “the State cannot presume that a child and his parents are
adversaries.” Id. Such factors as the intensity of the state’s efforts to
preserve the family, the perseverance of the family relationship, and the
parent’s rehabilitation efforts should be considered in this first stage of the
proceedings, with its higher burden on the state to prove unfitness by clear
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JUSTICE BOLICK, Concurring in the Result
and convincing evidence. Id. at 769–70. Indeed, this Court recognized in
Jessie D. that “requiring DCS to provide reunification services to an
incarcerated parent . . . is a constitutional requirement under Santosky.”
251 Ariz. at 582 ¶ 21; accord Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz.
185, 191 ¶ 28 (App. 1999).
¶46 In Jessie D., the Court stated that the length of sentence inquiry
under § 8-533(B)(4) is “individualized and fact specific.” 251 Ariz. at 579
¶ 9. But as the Court applies it here, that individualized determination
owes not to constitutional requirements, but to the statute’s lack of clarity
with respect to the undefined term, “normal home.” Supra ¶ 26 (noting
that the legislature could have, but did not, simply “provide[] as a ground
for termination that the parent is imprisoned for a period of years”).
¶47 Per Santosky, all evidence pertaining to the parent’s rights,
including rehabilitation and efforts to preserve the family, should be
considered in the first phase of the parental termination proceedings, where
the state bears the greater burden of proof. In many cases, the parent will
not contest termination, or the evidence of unfitness will be overwhelming.
See Santosky, 455 U.S. at 762, 769–70. But in other cases, like this one, the
issue will be greatly contested. I am satisfied that, after Jessie D. and this
case, a careful, individualized determination will be made in the length of
sentence context that takes into account the parent’s fundamental rights.
¶48 However, that confidence is undermined by the Court’s
assertion that “the parent’s interest in maintaining a positive parent-child
relationship and the parent’s efforts and ability to do so” should be
considered in the second stage of the termination proceeding, the child’s
best interests analysis. Supra ¶ 31. Similarly, the Court held in Alma S.
that “courts should consider a parent’s rehabilitation efforts as part of the
best-interests analysis.” 245 Ariz. at 151 ¶ 15. Those holdings are exactly
what Santosky expressly rejected, given that in the best interests stage of
proceedings the interests of the parent and child are presumed to diverge,
the focus is therefore properly on the child’s interests, and the inquiry is
subject to the preponderance of evidence standard that Santosky repudiated
in the context of determining the parent’s rights. 455 U.S. at 758–70. The
parent’s interests should be considered in the unfitness stage, where “the
child and his parents share a vital interest in preventing erroneous
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JUSTICE BOLICK, Concurring in the Result
termination of their natural relationship,” id. at 760, a mutual interest that
is especially manifest here. 4
¶49 This year marks Santosky’s fortieth anniversary. Regretfully,
that is the latest definitive word from the Supreme Court on the substantive
and procedural due process principles that apply to “forced dissolution” of
parental rights and “the irretrievable destruction” of family relationships.
Id. at 753. Notwithstanding the work that remains in bringing our
jurisprudence, statutes, rules, and agency practices into harmony with the
Fourteenth Amendment, I applaud my colleagues for a decision that
recognizes the precious rights and interests at stake.
4 I have set forth my concerns in this regard in greater detail in Alma S.,
245 Ariz. at 152–56 ¶¶ 24–39 (Bolick, J., concurring in the result).
17