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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                         v.

            DEPARTMENT OF CHILD SAFETY, M.R., Appellees.

                              No. 1 CA-JV 15-0354
                                FILED 5-5-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD20488
                  The Honorable Bruce R. Cohen, Judge

                                   AFFIRMED


                                    COUNSEL

John Popilek, P.C., Scottsdale
By John Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Michael F. Valenzuela
Counsel for Appellees
                         MICHAEL R. v. DCS, M.R.
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1            Michael R. (Father) appeals the superior court’s order
terminating his parental rights to M.R., arguing the order is based on an
improper conclusive legal presumption that severance is mandated if a
child is born during a parent’s incarceration. Because Father has shown no
error, the order is affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2             In September 2014, Father was sentenced to four years in
prison, with 219 days of presentence incarceration credit, after pleading
guilty to two felony offenses. One week later, M.R. was born and tested
positive for illegal substances.

¶3            The Department of Child Safety (DCS) took M.R. into custody
and filed a dependency petition days after his birth. M.R. was placed with
a maternal relative. After Father’s paternity was established, M.R. was
found dependent as to both Mother and Father in February 2015. Mother’s
parental rights were later terminated and she is not party to this appeal.

¶4            In May 2015, over Father’s objection, the superior court
changed the case plan to severance and adoption. DCS’ motion for
termination alleged Father’s felony prison sentence was “of such length that
the child will be deprived of a normal home for a period of years.” Ariz.
Rev. Stat. (A.R.S.) § 8-533(B)(4) (2016).2

¶5          At a severance adjudication in October 2015, the DCS case
manager and Father testified. The trial evidence showed Father was serving

1This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


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                          MICHAEL R. v. DCS, M.R.
                            Decision of the Court

a four-year prison sentence, had not participated in any programs or sent
anything to M.R., and that given M.R.’s young age, it would be detrimental
for him to be deprived of a permanent home for a period of years. The case
manager testified that M.R.’s maternal-family placement could give M.R.
the stable permanent home that he needs. Father testified that he had never
met M.R., given M.R.’s medical issues that precluded visitation while
Father was in custody, that he could not afford envelopes and stamps to
send M.R. letters and that he was still waiting to enroll in classes in prison.
Father testified that he would be released sometime between February and
July 2017 and wants to parent M.R.

¶6            After considering the evidence and argument, the superior
court found DCS met its burden of proof and granted the motion to
terminate. This court has jurisdiction over Father’s timely appeal pursuant
to A.R.S. §§ 8-235, 12-120.21(A)(1) and 12-2101(A)(1) and Arizona Rules of
Procedure for the Juvenile Court 103-04.

                                 DISCUSSION

¶7             As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8–533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court
“is in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts,” this court will affirm
an order terminating parental rights so long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).

¶8             Father argues the superior court created a conclusive legal
presumption that termination is required when a child is born during a
father’s incarceration. The record does not support that argument.

¶9              By statute, DCS was required to prove Father was “deprived
of civil liberties due to the conviction of a felony” and Father’s sentence “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). When considering a motion to terminate
based on length of felony sentence, the superior court

               should consider all relevant factors, including,
               but not limited to: (1) the length and strength of
               any parent-child relationship existing when


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                         MICHAEL R. v. DCS, M.R.
                           Decision of the Court

              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. After considering
              those and other relevant factors, the trial court
              can determine whether the sentence is of such a
              length as to deprive a child of a normal home
              for a period of years.

Michael J., 196 Ariz. at 251-52 ¶ 29. Here, the court expressly enumerated,
applied and weighed these factors based on the evidence presented and,
after doing so, granted termination.

¶10           In asserting the court created a conclusive legal presumption
of termination if a child is born while a parent is incarcerated, Father points
to the following two sentences in the superior court’s order:

              The early years of a child’s life are critical to the
              child’s     emotional      and       psychological
              development. The absence of a parent without
              another person serving in a permanency role
              has been shown to be potentially catastrophic to
              a child’s development.

This quoted language was not the beginning or the end of the court’s
analysis.3 Instead, this language is a portion of a paragraph considering one



3 Father claims no expert evidence supports this quoted language, while
DCS states it was not supported by the record. Father made no such
objection before the superior court and the DCS case manager testified that,
given M.R.’s age, it would be detrimental to remain in care, because M.R.
“needs permanency. And in order for him to have permanency, we have to
offer him a stable home.” This testimony arguably supports the quoted
language and Father has not shown the court erred in considering this
evidence in applying Michael J. See Denise R. v. Ariz. Dep’t of Econ. Sec., 221



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                         MICHAEL R. v. DCS, M.R.
                           Decision of the Court

of the six Michael J. factors, namely “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.” 196 Ariz. at 252 ¶ 29.

¶11            Along with analyzing the Michael J. factors, the superior court
addressed other relevant factors. The court properly considered the facts of
this case in context and made a ruling supported by the record. See id. at 251
¶ 29 (“[T]he better approach is to consider each case on its particular
facts.”). Accordingly, Father has not shown the court created a conclusive
legal presumption that termination is required when M.R. was born during
Father’s incarceration. 4

                               CONCLUSION

¶12           The order terminating Father’s parental rights to M.R. is
affirmed.




                                  :ama




Ariz. 92, 94 ¶ 4 (App. 2009) (noting this court will affirm “if any reasonable
construction of the evidence justifies the decision”) (citations omitted).

4 Although not challenged by Father on appeal, the superior court also
properly found termination was in the best interests of M.R. See Kent K., 210
Ariz. at 288 ¶ 41. Consistent with the evidence presented at the hearing, the
court found that all of M.R.’s needs are being met in his potentially adoptive
placement and that M.R. is adoptable.



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