Elaine Z. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ELAINE Z., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.C., O.C., Appellees.
No. 1 CA-JV 17-0176
FILED 9-19-2017
Appeal from the Superior Court in Maricopa County
No. JD15564
The Honorable William R. Wingard, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
ELAINE Z. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
W I N T H R O P, Presiding Judge:
¶1 Elaine Z. (“Mother”) appeals the juvenile court’s order
severing her parental rights to T.C. and O.C. (“the children”). Mother
contends the court erred in severing her rights based on her length of
incarceration for a felony conviction. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of T.C., born in 2009, and O.C.,
born in 2012. Mother’s rights to two other biological children were severed
in 2009.1
¶3 In 2015, Mother was convicted of mail fraud and aggravated
identity theft, and sentenced to six years’ imprisonment. As a result, the
Department of Child Safety (“DCS”) took custody of the children2 and filed
a dependency petition, alleging the children were dependent as to Mother
on the ground of neglect.3 Mother contested the dependency petition.
Before the juvenile court ruled on the dependency petition, DCS petitioned
to sever Mother’s parental rights on two grounds: (1) that Mother could
not provide a normal home life for her children due to her incarceration for
a felony conviction, and (2) that Mother wilfully abused a child or failed to
1 In 2007, Mother was convicted of felony child abuse for breaking her
eldest child’s arm.
2 The children were initially placed with relatives in April of 2015;
however, due to ongoing therapy requirements, DCS eventually placed the
children in foster care and filed the dependency action.
3 The children’s biological father (“Father”), who is not a party to this
appeal, was incarcerated at the time of the dependency petition. Father was
released from prison during the dependency proceedings, but his rights to
the children were severed concurrently with Mother’s in March 2017.
Father is not contesting the severance, and is not a party to this appeal.
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ELAINE Z. v. DCS, et al.
Decision of the Court
protect a child from wilful abuse. See Ariz. Rev. Stat. (“A.R.S.”) § 8-
533(B)(2), (4) (Supp. 2016).
¶4 At a pretrial conference in February 2017, a month before the
severance hearing, Mother requested Skype visits with the children while
she was incarcerated, and the juvenile court ordered DCS to “look into” the
matter. After consulting with the children’s therapist and with a
psychologist, DCS determined that such visits could retraumatize the
children and denied Mother’s request. The record does not indicate
whether Mother requested an order authorizing phone calls with the
children if her request for Skype visits was denied. The last time Mother
spoke with the children was in April 2015, before her incarceration.
¶5 In March 2017, the juvenile court held a two-day hearing on
the dependency and severance petitions. At the hearing, the DCS case
manager testified that Mother would be unable to provide the children with
a normal home while incarcerated. The DCS case manager defined a
normal parent-child relationship as a relationship in which the parent
provides for the child’s basic daily needs, including food, shelter, clothing,
being with the child at night, putting the child to bed, and taking the child
to school. Mother, in this case, would be unable to provide any of these
basic daily needs, let alone daily contact, stability, and permanency because
of her incarceration.
¶6 Mother testified that before her incarceration, she was the
children’s primary caregiver, and that she has “a very good relationship”
with them. Mother stated that she wrote letters and authored stories for the
children while incarcerated and that, as above, she requested video
visitation with the children.4
¶7 Mother further testified that she is currently incarcerated in
California and her expected release date is 2020.5 However, she stated that
she hopes to reduce her sentence by eighteen months by participating in
certain programs offered by the prison. Mother acknowledged, however,
4 Notwithstanding that she earned some wages while employed in
prison, there is no indication that Mother provided any monetary support
for her children.
5 The record contains inconsistent testimony as to Mother’s release
date. However, the Federal Bureau of Prisons’ website indicates a potential
release date of August 25, 2020.
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Decision of the Court
that her incarceration “would cause some mental issues and emotional
issues” for the children and that it is important for the children to have
stability.
¶8 The juvenile court found the children dependent as to Mother
and took the severance petition under advisement. After assessing the
Michael J.6 factors, the court severed Mother’s parental rights on the basis of
her length of incarceration. The court specifically found that “the degree to
which the parent-child relationship could be continued or nurtured while
Mother [was] incarcerated [was] minimal” and that Mother had “been
unable to arrange for any way to speak with the children.” The court also
found that severance was in the children’s best interests.
¶9 Mother timely appealed, and we have jurisdiction pursuant
to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A) (2014);
and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
ANALYSIS
¶10 On appeal, Mother argues the juvenile court’s severance
order lacks evidentiary support. In particular, Mother argues the court
erred in assessing the second Michael J. factor when it found that Mother
could only minimally maintain a parent-child relationship while
incarcerated, and that Mother was unable to arrange a way to interact with
the children. Mother maintains the court must reweigh the Michael J. factors
in light of these purported errors to determine whether severance was
proper.
¶11 We view the evidence in the light most favorable to sustaining
the juvenile court’s order and will overturn the court’s findings only if such
findings were clearly erroneous, such that they are not supported by
reasonable evidence. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377,
¶ 2, 982 P.2d 1290, 1291 (App. 1998). Although parents have a fundamental
right to raise their children as they see fit, that right is not without
limitation. Minh T. v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 76, 79, ¶ 14, 41 P.3d
614, 617 (App. 2001). As relevant here, a juvenile court may terminate a
parent’s rights if it finds by clear and convincing evidence “[t]hat 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.” A.R.S. § 8-533(B)(4). Additionally, the
juvenile court must find by a preponderance of the evidence that
6 Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 995 P.2d 682 (2000).
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Decision of the Court
termination is in the best interest of the child. Michael J., 196 Ariz. at 249,
¶ 12, 995 P.2d at 685.
¶12 Under A.R.S. § 8-533(B)(4), incarceration for a period of years
is not a per se ground for termination. Id. at 250, ¶ 22, 995 P.2d at 686.
Instead, the court must consider a non-exhaustive list of factors as provided
by our supreme court to determine whether termination is appropriate. Id.These factors include:
(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 that 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, 995 P.2d at 687-88.
¶13 Contrary to Mother’s assertions, substantial evidence
supports the juvenile court’s findings.
¶14 In the court’s order, it assessed each of the Michael J. factors in
turn.
¶15 First, the juvenile court assessed the length and strength of the
parent-child relationship that existed when incarceration began. The court
found that before Mother’s incarceration, she resided with the children and,
according to Mother, had a good relationship with the children,
participated in daily activities with them, and provided for their daily
needs.
¶16 Second, the juvenile court assessed the degree to which the
parent-child relationship could be continued and nurtured during Mother’s
incarceration. The court found that Mother was unable to nurture the
parent-child relationship due to her incarceration. The court specifically
found that Mother was unable to arrange for any way to interact with the
children and had not been in contact with them since her incarceration in
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ELAINE Z. v. DCS, et al.
Decision of the Court
April 2015.7 Mother asserts the court’s findings were invalid because her
request for Skype visits was denied based on DCS’s decision, not due to her
own lack of effort, and DCS must make an “endangerment” finding before
it can deny Skype visits. Mother provides no legal support for this
argument. We note that Mother first asked for such visits just a month
before the scheduled severance hearing, notwithstanding the fact that she
had at that point been incarcerated for many months. We also note there is
no evidence in the record to indicate that Mother ever asked for telephone
contact with the children.
¶17 It is well established that DCS is “not required to provide
every conceivable service” to a parent, but must provide appropriate
remedial services. Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348,
353, 884 P.2d 234, 239 (App. 1994). Further, this court will not reverse a
severance decision based on a parent’s unsubstantiated “belief” as to what
is in the child’s best interests; rather, we will affirm the juvenile court’s
findings if they are supported by reasonable evidence. See Michael M. v.
Ariz. Dep’t of Econ. Sec., 202 Ariz. 198, 201, ¶ 11, 42 P.3d 1163, 1166 (App.
2002). Here, DCS’s decision to deny Mother’s request for Skype visits was
based on the informed recommendations of the children’s therapist and a
psychologist who independently reviewed the therapist’s reports. Both
mental health specialists opined that Skype visits would retraumatize the
children and cause them mental and emotional harm.8 Thus, the court’s
finding that Mother was unable to arrange to visually interact with the
children was supported by reasonable evidence that such visits, either in
person or via an internet connection, would cause the children emotional
harm.
¶18 Third, the juvenile court assessed the children’s ages and the
relationship between their ages and the likelihood Mother’s incarceration
would deprive the children of a normal home. The court found Mother’s
incarceration had deprived the children of a normal home, and would
continue to do so. The children were approximately six and three years old,
7 Although Mother testified that she wrote letters to the children, and
the DCS case manager acknowledged that the children received these
letters, the record is unclear as to when and how often Mother
communicated with the children. Further, there was no evidence offered
as to how the children responded, if at all, to Mother’s letters.
8 The record reflects that T.C. had been present during domestic
disputes between Mother and Father. On one occasion, T.C. was present
when Father hit Mother with a belt and Mother stabbed Father.
6
ELAINE Z. v. DCS, et al.
Decision of the Court
respectively, at the time Mother’s incarceration began, and Mother’s
sentence likely will continue until August of 2020. Further, Mother is
detained in California, which makes physical contact with the children
significantly more difficult.
¶19 Fourth, the juvenile court addressed the length of Mother’s
sentence, and considered the total length of time that Mother has been, and
will be, absent from the children. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 281, ¶ 8, 53 P.3d 203, 206 (App. 2002). Here, the court considered
Mother’s potential release date of August 2020. The court further
considered the likelihood that Mother would be unable to immediately
reunify with the children after her release due to the anticipated terms of
her probation. See Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441,
¶¶ 15-16, 323 P.3d 720, 724 (App. 2014).
¶20 Fifth, the juvenile court considered the availability of another
parent to provide a normal life for the children. The court found that no
other parent was available to provide the children with a normal life
because Father’s rights had been severed.
¶21 Sixth, the juvenile court considered the effect of the
deprivation of a parental presence on the children. The court found the
deprivation of Mother’s presence did not weigh against severance, given
that in her presence, the children had been exposed to considerable trauma.
¶22 After considering all the Michael J. factors as applied to the
evidence, the juvenile court found that DCS met its burden of proof. The
record, viewed as a whole, fully supports the court’s findings. See id. at
¶ 17.
¶23 Mother does not challenge the juvenile court’s finding that
severance was in the children’s best interests. Nonetheless, we note that the
record supports the finding. The court found that the continuation of the
parental relationship would harm the children because it would force them
to remain in foster care during Mother’s incarceration. The court also found
that severance would allow the children to be adopted by a loving and
permanent family that could provide for their daily needs. Further, the
court found that, even if DCS’s current case plan for adoption does not
move forward, the children are nonetheless adoptable. Reasonable
evidence supports the court’s findings.
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ELAINE Z. v. DCS, et al.
Decision of the Court
CONCLUSION
¶24 The juvenile court’s order severing Mother’s rights to the
children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
8