                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           AUGUSTIN C., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, E.C., Appellees.

                              No. 1 CA-JV 18-0003
                                FILED 5-8-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD32580
              The Honorable Sally Schneider Duncan, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Denise L. Carroll, Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
                          Augustin C. v. DCS, E.C.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Kent E. Cattani joined.


W I N T H R O P, Judge:

¶1            Augustin C. (“Father”) appeals the juvenile court’s order
severing his parental rights to E.C. Father argues the court erred in severing
his parental rights based on the length of incarceration for a felony
conviction and that severance was not in E.C.’s best interest. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             Father is the biological parent of E.C., born in 2013.1 After
E.C.’s birth, Father lived with E.C. and Mother until he moved out in July
2015. Father continued to see E.C. every week and provided E.C. with
financial support until he was arrested in August 2015, for facilitation of
aggravated assault, a class 6 felony and misconduct involving a weapon, a
class 4 felony. Father was subsequently convicted, sentenced to three years
in prison, and was incarcerated over the course of the subsequent
dependency and severance proceedings.

¶3            In 2016, the Department of Child Safety (“DCS”) filed a
petition for dependency alleging E.C. was dependent as to Father due to
Father’s incarceration. Father contested the petition, but the court
ultimately found E.C. dependent as to Father. DCS then petitioned to sever
Father’s parental rights based on his incarceration for a felony conviction
and alleged severance was in E.C.’s best interest because it would provide
her with permanency and stability. Father contested the severance, and a
hearing was held in December 2017.

¶4           At the severance hearing Father testified that although he had
been incarcerated during the dependency and severance proceedings, he
had previously established a good relationship with E.C. because he lived


1    The juvenile court also severed the parental rights of E.C.’s biological
mother; however, she is not a party to this appeal.



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                          Augustin C. v. DCS, E.C.
                           Decision of the Court

with her during the first two years of her life and then continued to see her
on a weekly basis once he moved out. Father further testified that he
planned on resuming his previous employment and planned on continuing
to care for and financially support E.C. once he was released from prison
on April 15, 2018.

¶5             DCS, however, argued that, contrary to his assertions, Father
had not established a relationship with E.C. while incarcerated because he
had minimal contact with her. The evidence indicated that, while in prison,
Father only sent E.C. two letters. Additionally, Father never sent E.C.
birthday cards or gifts and never requested Skype calls or visitation. The
DCS case manager further testified that, in her opinion, Father was unable
to establish a parent-child bond with E.C. because he had been incarcerated
for almost one-half of E.C.’s life. DCS additionally argued that it was
doubtful that Father would be released from prison on his expected release
date because of Father’s substantial history of disciplinary violations while
incarcerated.

¶6            The juvenile court took the matter under advisement and
ultimately severed Father’s parental rights based on his length of
incarceration. The court specifically found that:

      Father [] has a limited relationship with his child because he
      had effectively abandoned the child before he was
      incarcerated in 2016. Further, if Father is released around
      [April] 2018, he will have been incarcerated for nearly half of
      his child’s life. Furthermore, Father has not made efforts to
      engage with his child during his incarceration. Finally,
      Father’s child, who is four-years old, has been deprived of a
      normal home during Father’s incarceration, as there is no
      other parent that is fit to care for the child, and the child is far
      too young to be without a parent.

¶7            The juvenile court also found that severance of Father’s
parental rights was in E.C.’s best interest because it would provide her with
permanency and stability and further the plan of adoption. Father timely
appealed, and we have jurisdiction pursuant to the Arizona Constitution,




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                          Augustin C. v. DCS, E.C.
                           Decision of the Court

Article 6, Section 9; Arizona Revised Statutes (“A.R.S.”) section 8-235(A)
(2014)2; and Arizona Rules of Procedure for the Juvenile Court 103(A).

                                  ANALYSIS

¶8            On appeal, Father argues the juvenile court failed to properly
consider that Father was scheduled to be released from prison in April 2018,
and thus, improperly severed his parental rights based on felony
incarceration.

¶9            We view the evidence in the light most favorable to sustaining
the juvenile court’s order and will only overturn the court’s findings if they
cannot be supported by reasonable evidence. Ariz. Dep’t of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010). In conducting that review,
however, we do not reweigh the evidence presented at the severance
hearing. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13
(App. 2011) (“The juvenile court is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and make
appropriate findings.” (citation omitted)). 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
(App. 2001). To sever this fundamental right, a juvenile court must find by
clear and convincing evidence that one of the statutory grounds for
severance exists. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249,
¶ 12 (2000).

¶10             As relevant here, a juvenile court may sever a parent’s right
to his child if the court finds “[t]hat the parent is deprived of 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.” A.R.S. § 8-533(B)(4) (Supp. 2017). The Michael J. court held,
however, that incarceration for a period of years is not per se grounds for
severance of parental rights. 196 Ariz. at 250, ¶ 22. Instead, juvenile courts
must consider a non-exhaustive list of factors to determine whether
severance 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


2      We cite the current version of all applicable statutes because no
revisions material to this decision have occurred.



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                          Augustin C. v. DCS, E.C.
                           Decision of the Court

       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.

¶11            The Michael J. factors do not provide a bright line rule for
determining when a court should sever a parent’s right to parent his child,
but instead serve as a guideline to assist the court in its consideration of the
issue. See Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 14 (App.
2014). We will affirm a juvenile court’s severance order based on length of
incarceration even if the court failed to make specific findings as to each
Michael J. factor so long as the record supports the court’s ruling. Id. at 441,
¶ 14.

¶12            Here, the juvenile court found that Father had a limited
relationship with E.C. because he was incarcerated for nearly one-half of
E.C.’s life. The court additionally found that Father did not make any effort
to nurture his relationship with E.C. during his incarceration and that E.C.
had been deprived of a normal home due to Father’s incarceration. In
addition to the court’s specific findings, the record supports severance of
Father’s parental rights based on the length of his incarceration. Father only
sent E.C. two letters while incarcerated and Father did not otherwise
attempt to communicate with E.C., such as by requesting visits or Skype
calls.    The DCS case manager additionally testified that Father’s
incarceration deprived E.C. of a normal home, and that given her age, E.C.
needed to be in a household with a parent at home.

¶13           Moreover, although Father alleged he would be released from
prison in April 2018, DCS presented evidence that it was uncertain at best
whether Father would be released at that time due to his lengthy history of
disciplinary violations while incarcerated. We note that Father is currently
released from prison; however, Father’s change in custody does not affect
the juvenile court’s findings. See Jeffrey P. v. Dep’t of Child Safety, 239 Ariz.
212, 214, ¶ 9 (App. 2016) (affirming a juvenile court’s severance order,
although father was released from prison at the time of the appeal, and
calculating the time of incarceration pursuant to § 8-533(B)(4) as the entire
time of incarceration, not just the time after DCS filed a severance petition).
While juvenile courts may consider the possibility that a parent will be
released before his scheduled release date, a parent’s impending release is


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                          Augustin C. v. DCS, E.C.
                           Decision of the Court

not dispositive in deciding whether to sever a parent’s rights based on
length of incarceration for a felony conviction. Id. at ¶ 8. Additionally, here,
the court considered Father’s potential release date of April 2018, before
severing his parental rights. The court specifically found that even if Father
were to be released from prison in April 2018, he would have, at that time,
been incarcerated for about two years, one-half of E.C.’s life. The record,
viewed as a whole, fully supports the court’s severance of Father’s parental
rights.

¶14            Father additionally argues that the juvenile court erred in
finding severance was in E.C.’s best interest. To sever parental rights, the
court must find by a preponderance of the evidence that severance is in the
best interest of the child. Michael J., 196 Ariz. at 249, ¶ 12. Accordingly, a
court must find either that a child will affirmatively benefit from the
severance of a parent’s rights or that a continued relationship with a parent
will harm the child. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50,
¶ 19 (App. 2004). Here, the court found that severance was in E.C.’s best
interest because it would provide her with permanency and stability.
Additionally, the court found that E.C. was currently in an adoptive
placement, with her maternal grandmother. Reasonable evidence supports
the court’s findings.

                                CONCLUSION

¶15           The juvenile court’s order severing Father’s rights to E.C. is
affirmed.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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