Arizona Department of Economic Security v. Rocky J.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Appellant,

v.

ROCKY J., O.K., Appellee.

Nos. 1 CA-JV 13-0255, 1 CA-JV 13-0294 (Consolidated)

FILED 4-10-2014

Appeal from the Superior Court in Maricopa County

No. JD13879

The Honorable Daniel G. Martin, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Erika Z. Alfred

Counsel for Appellant

Robert D. Rosanelli, Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellee

ADES v. ROCKY J., O.K.

Opinion of the Court

OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which

Acting Presiding Judge John C. Gemmill and Judge Jon. W. Thompson

joined.

H O W E, Judge:

¶1 The Arizona Department of Economic Security (ADES)

appeals the juvenile court’s denial of its motion to terminate Rocky J.’s

(Father) parental rights to O.K. (Child). ADES argues that the juvenile

court erred in not finding that Father’s incarceration would deprive Child

of a normal home for a period of years under A.R.S. § 8–533(B)(4) by

(1) improperly considering Father’s anticipated release date from prison

instead of the entire length of his sentence and (2) failing to apply the

Michael J. 1 factors. We affirm the juvenile court’s ruling. The court was

aware of the length of Father’s sentence and reasonably concluded that

Father’s impending anticipated release date was a critical fact in

determining that termination was not proven under § 8–533(B)(4). Further,

the court was not required to make specific findings on the record

regarding the Michael J. factors, and the factors support the juvenile

court’s ruling that termination was not warranted.

FACTS AND PROCEDURAL HISTORY

¶2 Jessica K. (Mother), who was unmarried, gave birth to Child

in September 2001. Father was incarcerated in New Mexico at the time of

Child’s birth. Mother wrote to Father informing him of Child’s birth, and

Father asked for a photograph of Child but never received one. Although

Father initially had Mother’s post office box address, he lost contact once

“the number ran out.”

¶3 Child lived with Mother for six months, but thereafter lived

with her maternal grandmother (Grandmother). When Father learned that

1 Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 995 P.2d 682

(2000).

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ADES v. ROCKY J., O.K.

Opinion of the Court

Child lived with Grandmother, Father made collect phone calls and wrote

letters to Child. Grandmother did not give the letters to Child, however.

¶4 Mother abandoned Child in 2004, and in March 2005 the

juvenile court adjudicated Child dependent because of Mother’s

abandonment and Father’s incarceration. At the dependency hearing,

Father agreed to the dependency, but denied the allegations in the ADES’s

dependency petition. Mother did not appear at the hearing. The juvenile

court adjudicated Child dependent, placed Child in ADES’s care and

custody, and initiated a reunification case plan. Father called and wrote to

Child while she was in ADES’s care.

¶5 In May 2006, Father was released from prison and asked to

serve his parole in Arizona with the intention of regaining custody of

Child. He was not allowed to do so because he had no immediate family

in Arizona; instead, he was allowed to serve his parole in Nevada, where

his sister lived. While there, he was convicted of burglary in December

2006 and sentenced to 12.5 years imprisonment with parole eligibility after

5 years. Upon Father’s release on parole, he violated his release conditions

and was again incarcerated in Nevada.

¶6 In April 2007, Grandmother was appointed Child’s

guardian. Father then wrote multiple letters to the juvenile court

requesting contact with Child. The court denied Father’s request, finding

that “visitation between [Child] and her parents shall be at the discretion

of [Child’s] permanent guardian.” Father’s sister contacted Grandmother

to ask if Father could have contact with Child, but Grandmother refused.

Father nevertheless wrote letters to Child and participated in a prison

program that provided a Christmas gift to Child.

¶7 In April 2012, ADES filed a second dependency petition,

stating that Grandmother was no longer willing to care for Child because

of Child’s behavior. On April 30, 2012, the court found Child dependent as

to Grandmother. In May 2012, Father wrote to the juvenile court, stating

that he opposed the termination of his parental rights to Child. Father

claimed that he had not been allowed to contact Child for the past seven

years and admitted that Child did not know him. Father wrote letters to

Child, but they were not delivered to her because her therapist deemed

that it was not in her best interest.

¶8 In January 2013, ADES moved to terminate Father’s and

Mother’s parental rights to Child pursuant to A.R.S. § 8-533(B)(1) and

(B)(4), claiming that they had each abandoned Child and that the length of

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ADES v. ROCKY J., O.K.

Opinion of the Court

Father’s imprisonment would deprive Child of a normal home for a

period of years. ADES sought severance so that Grandmother could adopt

Child. Although Grandmother had asked for her guardianship of Child to

be revoked in April 2012, Grandmother had a change of heart because

Child had matured since that time and had improved behavior.

¶9 At the severance hearing, Father testified that he would be

released from prison no later than April 2014 and that he had arranged for

transitional housing after his release. Father admitted that he did not have

a relationship with Child, although he had attempted to write to her on

every holiday and arranged to have gifts sent to her on Christmas. He also

testified that in 2005 he spoke to Child once a week by telephone.

¶10 On September 10, 2013, the juvenile court terminated

Mother’s parental rights because she had failed to appear after proper

notice and thus waived her right to contest the termination. 2 The court,

however, refused to terminate Father’s parental rights. The court found

that Father had not abandoned Child because although he had been

unable to parent Child, he had made “substantial efforts to communicate”

with Child and “strongly desire[d] to establish a relationship with her.”

The court also found that Grandmother had prevented him from having

meaningful contact with Child. The court found that Father’s

imprisonment would not deprive Child of a normal home because Father

would be released from prison in April 2014. The court noted that

although Father might be on parole after his release from prison and

would need to demonstrate an extended period of sobriety, these time

periods did not justify the termination of Father’s parental rights. Because

the court found no grounds for terminating Father’s parental rights, it did

not conduct a best-interest analysis.

¶11 On September 24, 2013, ADES filed a notice of appeal. That

same day, ADES moved for reconsideration, arguing that the court erred

by failing to consider the entire length of Father’s sentence, his maximum

release date, and the six Michael J. factors. On September 27, 2013, the

court denied ADES’s motion for reconsideration in an unsigned minute

entry. The court issued a signed order denying ADES’s motion for

2 Mother did not appeal the ruling and is not a party to this appeal.

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Opinion of the Court

reconsideration on October 30, 2013. On November 8, 2013, ADES filed a

second notice of appeal. 3

DISCUSSION

¶12 ADES argues that the juvenile court erred in finding that

ADES failed to prove by clear and convincing evidence that Father’s

parental rights should have been terminated under § 8–533(B)(4) because

the length of Father’s prison sentence will deprive Child of a normal home

for a period of years.4 We view the evidence in a severance case in the

light most favorable to sustaining the juvenile court’s findings and will

affirm unless, as a matter of law, no reasonable evidence supports those

findings. Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95 ¶ 10, 210 P.3d

1263, 1266 (App. 2009). Because the trial court is “in the best position to

weigh the evidence, judge the credibility of the parties, observe the

parties, and make appropriate factual findings,” Pima Cnty. Dependency

Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987), this

Court will not reweigh the evidence, Maricopa Cnty. Juv. Action No. JV–

132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996). Additionally, we

review de novo legal issues requiring the interpretation and application of

§ 8–533. See Ariz. Dep’t of Econ. Sec. v. Ciana H., 191 Ariz. 339, 341 ¶ 11, 955

P.2d 977, 979 (App. 1998).

¶13 Termination of parental rights is appropriate only when

clear and convincing evidence proves a statutory ground for termination,

Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 449 ¶ 12, 153 P.3d 1074,

1078 (App. 2007), and a preponderance of the evidence shows that

termination is in the child’s best interest, Kent K. v. Bobby M., 210 Ariz. 279,

3 Father argues that ADES’s September 21, 2013, notice of appeal

divested the juvenile court of jurisdiction to consider ADES’s motion for

reconsideration filed the same day, which precludes this Court from

considering ADES’s subsequent appeal from the denial of the motion for

reconsideration. We need not decide this question because the issue raised

in the motion for reconsideration and on the appeal from its denial—

whether the juvenile court erred in finding that ADES did not prove by

clear and convincing evidence that severance was required under § 8–

533(B)(4)—is wholly encompassed within the first appeal from the

juvenile court’s initial denial of the severance petition.

4 ADES does not challenge the juvenile court’s ruling that ADES

failed to prove abandonment as a grounds for termination.

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Opinion of the Court

284 ¶ 22, 110 P.3d 1013, 1018 (2005). One ground for termination is 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 for a period of years.” § 8–533(B)(4).

¶14 Section 8–533(B)(4) provides “no ‘bright line’ definition of

when a sentence is sufficiently long to deprive a child of a normal home

for a period of years,” and each case depends on its particular facts.

Michael J., 196 Ariz. at 251 ¶ 29, 995 P.2d at 687. In making this

determination, “all relevant factors,” should be considered, which include

the following:

(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 ¶ 29, 995 P.2d at 687–88. The juvenile court is not required,

however, to make findings on the record regarding each of these factors.

Christy C., 214 Ariz. at 452 ¶ 19, 153 P.3d at 1081. 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.”

Id. at 451-52 ¶ 19, 153 P.3d at 1080-81. “[T]he juvenile court will be deemed

to have made every finding necessary to support the judgment.” Ariz.

Dep’t of Econ. Sec v. Matthew L., 223 Ariz. 547, 549 ¶ 7, 225 P.3d 604, 606

(App. 2010).

¶15 In ruling that ADES had failed to prove by clear and

convincing evidence that Father’s sentence would deprive Child of a

home for a period of years, the juvenile court relied on Father’s impending

release from prison in less than a year from the severance trial. Because

the evidence showed that Father was expected to be released on parole in

April 2014, just over seven months from the date of the severance trial, the

court reasonably concluded that ADES had failed to prove that Child

would be deprived of a home for a period of years, even if Father would

have to spend a period of time in a half-way house after his release.

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ADES v. ROCKY J., O.K.

Opinion of the Court

¶16 Although ADES argues that the juvenile court erred by

considering only the length of time between the severance trial and

Father’s release and not the length of Father’s sentence or maximum

release date, nothing shows that the court failed to appreciate the original

length of the sentence or the maximum release date of 2018. The juvenile

court was not required to expressly note them in its ruling, Christy C., 214

Ariz. at 452 ¶ 19, 153 P.3d at 1081 (holding that express findings on

Michael J. factors not required), and moreover, because the court denied

the petition to terminate Father’s rights, it was not required to make any

findings at all, Matthew L., 223 Ariz. at 549–50 ¶ 10, 225 P.3d at 606–07

(recognizing that A.R.S. § 8–533(A) does not require the juvenile court “to

make findings when denying a motion to terminate the parent-child

relationship”). ADES presented testimony about the length of Father’s

sentence and maximum release date and argued that this supported

termination. The failure to persuade the court that this justified

termination—in the face of Father’s impending release from prison—does

not mean that the court failed to consider Father’s sentence. An

anticipated release date is a relevant factor in determining whether a child

will be deprived of a normal home for a period of years. Matthew L., 223

Ariz. at 550 ¶ 15, 225 P.3d at 607 (holding that “[a]s long as the juvenile

court considers the length of sentence, we find no error for it to also

consider the anticipated release date.”). The juvenile court did not err.

¶17 ADES nevertheless argues that the juvenile court erred in its

ruling against termination because “all six of the Michael J. factors

supported termination of Father’s rights.” But “there is no threshold level

under each individual factor in Michael J. that either compels, or forbids,

severance.” Christy C., 214 Ariz. at 450 ¶ 15, 153 P.3d at 1079. “It is an

individualized, fact-specific inquiry.” Id. The critical factor for the juvenile

court was that Father would be released from prison within months after

the severance trial, so the court had ample reason to find that ADES had

not proven by clear and convincing evidence that Father’s incarceration

would deprive Child of a normal home for a period of years, even if some

of the Michael J. factors might counsel termination.

¶18 Although the juvenile court did not expressly review or

make findings on each Michael J. factor other than the length of Father’s

sentence and his anticipated release date (the fourth Michael J. factor), the

evidence presented at the trial would have allowed the juvenile court to

find that the remaining factors weighed against termination of Father’s

parental rights. On the first factor—the length and strength of the parent-

child relationship when Father was incarcerated—admittedly the evidence

showed that Father had no relationship with Child at the beginning of his

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Opinion of the Court

prison sentence. But this was because Child was not yet born. And once

Child was born, Grandmother actively interfered with Father’s efforts to

create a bond with Child. Cf. Calvin B. v. Brittany B., 232 Ariz. 292, 293-94 ¶

1, 304 P.3d 1115, 1116-117 (App. 2013) (holding “that a parent who has

persistently and substantially restricted the other parent’s interaction with

their child may not prove abandonment based on evidence that the other

has had only limited involvement with the child”). ADES also refused to

give Child any of the letters that Father had written to Child. Thus, the

court could have reasonably concluded that Father’s incarceration was not

the sole cause of the lack of a relationship.

¶19 On the second factor—the degree to which the parent-child

relationship could be continued and nurtured during the incarceration—

the court could have reasonably found that Child and Father could build

their relationship through telephone calls and letters for the few months

until Father’s release from prison, and that this could continue while

Father resided at a half-way house. On the third factor—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—the evidence

showed that Child would be twelve years-old by the time Father was

released, and the short time Father remained in prison would not deprive

Child of a normal home. Father testified that he wanted to initiate a

relationship with Child upon his release from prison. Thus, Father will

have several years before Child becomes an adult to establish a normal

home for her.

¶20 On the fifth factor—the availability of another parent to

provide a normal home life—Mother’s whereabouts were unknown, and

the juvenile court terminated her parental rights after she did not contest

severance. Moreover, although Grandmother had served as a parent for

Child and apparently wished to adopt Child, the record shows that

Grandmother had difficulty raising Child. Child’s guardian ad litem

feared that Child would be returned to ADES custody in the future,

“whether or not that’s after an adoption.”

¶21 On the sixth factor—the effect of deprivation of a parental

presence—Child’s guardian ad litem stated that Child gave conflicting

statements about having Father’s rights severed and that she was too

immature to know the consequences of severing Father’s rights. Because

Child might decide that she wants a relationship with Father after contact

with him, a possibility that would be foreclosed if severance were granted,

the guardian urged that severance be denied. These were valid concerns

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Opinion of the Court

about depriving Child of the opportunity of a relationship with Father

that the court could have found warranted denying termination.

¶22 Contrary to ADES’s argument, reasoned consideration of the

Michael J. factors in this case does not compel a conclusion that severance

is warranted pursuant to § 8–533(B)(4). Based on the evidence presented

the trial, the juvenile court did not err in concluding that ADES did not

prove that Father’s sentence would deprive Child of a normal home for a

period of years.

CONCLUSION

¶23 For the foregoing reasons, we affirm.

:MJT

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