Michael Y. v. Dcs, C.Y.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MICHAEL Y., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.Y., Appellees.
No. 1 CA-JV 16-0153
FILED 11-15-2016
Appeal from the Superior Court in Maricopa County
No. JD29028
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee DCS
MICHAEL Y. v. DCS, C.Y.
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
K E S S L E R, Judge:
¶1 Appellant Michael Y. (“Father”) appeals the juvenile court’s
termination of his parental rights. Father argues the court erred in finding
that the Department of Child Services (“DCS”) had proved by clear and
convincing evidence that his sentence was long enough to deprive the child,
C.Y., of a normal home and had showed severance was in C.Y.’s best
interests. For the following reasons, we affirm the juvenile court’s ruling.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and S.O. (“Mother”) are the biological parents of C.Y.,
born in March 2014.1 C.Y. was born prematurely and tested positive for
methamphetamine. Mother admitted to using methamphetamine during
her pregnancy. C.Y. has several medical conditions, including cerebral
palsy and aspiration. C.Y. has paralyzed vocal cords and needs a feeding
tube. He also needs near-constant oxygen.
¶3 Father is currently incarcerated at Arizona State Prison
Complex Lewis and is serving a four-and-a-half-year sentence for forgery.
Father is eligible for early release in October 2017 and could be incarcerated
until September 2018. Father asserted his maximum sentence ends in
February 2018, however.
¶4 Father has never met C.Y.; he was born after Father was
imprisoned. M.B., the DCS caseworker, stated the relationship between
Father and C.Y. cannot be nurtured while Father is incarcerated. C.Y.
cannot visit Father because of his medical needs and cannot have phone
conversations because he is nonverbal. Father has sent C.Y. gifts from
prison and has inquired as to C.Y.’s wellbeing.
¶5 M.B. testified it would be at least a year after Father’s release
before Father would complete the services needed to reunite him with C.Y.
1 Mother’s rights were also terminated in the same proceeding, but she
did not appeal the juvenile court’s ruling.
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MICHAEL Y. v. DCS, C.Y.
Decision of the Court
and additional time would be required beyond that to train Father
regarding C.Y.’s medical needs. M.B. estimated it could be several years
before C.Y. could be reunited with Father and expressed concern about the
effect this would have on C.Y.’s stability and permanency.
¶6 C.Y.’s current placement is able to meet his medical needs and
is willing to adopt. C.Y. is attached and secure. Even if the current
placement was unable to adopt, M.B. testified that C.Y. is otherwise
adoptable.
¶7 DCS asserted Father is unable to parent due to the length of
his conviction and C.Y. would therefore be deprived of a normal home life
for a period of years. Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(4) (2016).2
Additionally, DCS argued it is in C.Y.’s best interest to sever Father’s rights
so C.Y.’s current placement can adopt him. The juvenile court agreed and
severed Father’s parental rights on those grounds.
¶8 Father timely appealed. We have jurisdiction under A.R.S. §§
8-235(A) (2016) and 12-120.21(A)(1) (2016).
DISCUSSION
I. Standard of Review
¶9 To terminate parental rights, the juvenile court must find, by
clear and convincing evidence, at least one of the statutory grounds set out
in A.R.S. § 8-533(B). See A.R.S. § 8-533(B); Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249, ¶ 12 (2000). It must also find DCS has shown by a
preponderance of the evidence that termination is in the best interests of the
child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We will review the
juvenile court’s termination order in the light most favorable to sustaining
the court’s decision and will affirm unless, as a matter of law, we must say
that no one could reasonably find the evidence supporting statutory
grounds for termination to be clear and convincing. Denise R. v. Ariz. Dep’t
of Econ. Sec., 221 Ariz. 92, 95, ¶ 10 (App. 2009) (citations and quotations
omitted). We will affirm the juvenile court’s severance order absent an
abuse of discretion or unless the court’s findings of fact were clearly
erroneous. E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 58, ¶ 9 (App. 2015)
(citations and quotations omitted).
2 We cite the current version of the relevant statute unless changes
material to this decision have occurred since the events in question.
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MICHAEL Y. v. DCS, C.Y.
Decision of the Court
II. Length of Incarceration for Felony Conviction
¶10 A.R.S. § 8-533(B)(4) provides no bright line definition whether
a sentence of incarceration is sufficiently long to deprive a child of a normal
home for a period of years. Michael J., 196 Ariz. at 251, ¶ 29. In making this
determination, the juvenile court should consider all relevant factors,
including, but not limited to
(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.
Id. at 251-52. We will affirm the juvenile court’s ruling if the facts support
the ruling “whether or not each supportive fact is specifically called out by
the trial court in its findings.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz.
445, 451-52, ¶ 19 (App. 2007) (citation omitted). The juvenile court will be
deemed to have made every finding necessary to support the judgment.
Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 14 (App. 2014)
(citation and quotations omitted).
¶11 Here, the juvenile court made express and substantial
findings regarding the relevant Michael J. factors. The court found that
Father had no parental relationship with C.Y. when his incarceration began
and that C.Y. will be at least three-and-a-half years old at Father’s earliest
release date. The court further found “[t]here are virtually no means by
which [C.Y.] could have regular contact with Father at the prison.”
Additionally, because of C.Y.’s young age and substantial medical needs,
the court held “even a relatively shorter period of incarceration would still
have a profound negative impact” and would deprive C.Y. of a normal
home.
¶12 The juvenile court correctly observed the length of Father’s
sentence is not dispositive and considered instead “the entire period of the
parent’s incarceration and absence from the home.” Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, 281, ¶ 8 (App. 2002) (citation omitted). Father
was incarcerated a few days before C.Y. was born and will not be released
until October 2017 at the earliest. Although the record shows some dispute
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MICHAEL Y. v. DCS, C.Y.
Decision of the Court
whether the latest release date was in February or September 2018, the
juvenile court considered only the February date. Because of the lack of
relationship between Father and C.Y. and C.Y.’s medical needs, the court
found conceivable that C.Y. would be nearing his fifth birthday before he
could be reunited with Father.
¶13 We recognize that Father has made efforts to start a
relationship with C.Y. and is interested in caring for him when Father is
released from prison. However, we must view the record in the light most
favorable to protecting the child. See Michael J., 196 Ariz. at 251-52, ¶ 29
(listing factors that focus on the child’s needs during the parent’s
incarceration). Based on these grounds, the juvenile court found DCS met
its burden of proof to terminate Father’s rights under A.R.S. § 8-533(B)(4).
As the juvenile court’s decision is supported by substantial evidence, we
affirm.
III. Best Interests of the Child
¶14 In addition to finding statutory grounds for termination, the
juvenile court must also find terminating parental rights is in the best
interests of the child. A.R.S. § 8-533(B). To establish that severance of a
parent’s rights would be in a child’s best interests, “the court must find
either that the child will benefit from termination of the relationship or that
the child would be harmed by continuation of the parental relationship.”
James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998)
(citation omitted). In making this determination, the juvenile court may
consider evidence that the child is adoptable or that an existing placement
is meeting the needs of the child. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 50, ¶ 19 (App. 2004) (citations omitted).
¶15 The juvenile court found that C.Y.’s current placement has
met all of his severe medical needs and has also provided him with “love,
nurturing, stability, permanency, and safety.” Although the current
placement is willing to adopt C.Y., M.B. testified and the court found that
he is adoptable even if this adoption is unable to proceed.
¶16 Based on the foregoing, the juvenile court found it would be
in C.Y.’s best interests to terminate Father’s parental rights. The record
supports that finding.
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MICHAEL Y. v. DCS, C.Y.
Decision of the Court
CONCLUSION
¶17 For the foregoing reasons, we affirm the termination of
Father’s parental rights as to C.Y.
AMY M. WOOD • Clerk of the Court
FILED: AA
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