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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           BRANDON H., Appellant,

                                         v.

        DEPARTMENT OF CHILD SAFETY, K.M., A.M., Appellees.

                              No. 1 CA-JV 18-0434
                                FILED 5-30-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD32448
                 The Honorable Karen A. Mullins, Judge

                                   AFFIRMED


                                    COUNSEL

Denise L. Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Carol A. Salvati
Counsel for Appellee Department of Child Safety
                         BRANDON H. v. DCS, et al.
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1            Brandon H. (Father) appeals the juvenile court’s order
terminating his parental rights to K.M. and A.M. (the Children), arguing:
(1) the court erred in terminating his parental rights without first finding
the Department of Child Safety (DCS) made diligent efforts to provide
reunification services while he was incarcerated; and (2) DCS failed to
prove termination was in the Children’s best interests by a preponderance
of the evidence. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In April 2016, DCS filed a petition alleging then-nine-month-
old K.M. was dependent as to Father on the grounds of neglect arising out
of domestic violence, substance abuse, and unresolved mental health
issues.1 In May 2017, Father pleaded guilty to possession of a dangerous
drug and misconduct involving weapons and was sentenced to two-and-a-
half years’ imprisonment. A.M. was born a few months later, and, after the
Children’s mother (Mother) failed to comply with the case plan, the juvenile
court changed the case plan to severance and adoption.2

¶3            DCS moved to terminate Father’s parental rights on the
grounds of abandonment and lengthy incarceration. At trial in September
2018, the DCS caseworker reported that neither of the Children had a
relationship with Father and he was not expected to be released from prison
for another nine months. Meanwhile, the Children were adoptable and in
an adoptive placement with their maternal grandmother, who was meeting
their regular and special needs. The caseworker testified that termination


1      “We view the facts . . . in a light most favorable to sustaining the
juvenile court’s findings.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2, ¶ 2
(2016) (citing Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 106 (1994)).

2      Mother did not contest the motion to terminate her parental rights
and is not a party to this appeal.


                                       2
                         BRANDON H. v. DCS, et al.
                           Decision of the Court

of Father’s parental rights would free the Children for permanency in a safe,
stable, drug-free home.

¶4           Father testified he could be released early and planned to
return to his parents’ home and previous employment immediately
thereafter. Father stressed his engagement in services, both before and
during his incarceration, and testified he believed it was better for the
Children to wait for his release because they love him and “need their
father.”

¶5            After taking the matter under advisement and considering
the length of Father’s prison sentence and its effect on his relationship with
the Children, see Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251-52,
¶ 29 (2000), the juvenile court found DCS had proved by clear and
convincing evidence that termination of Father’s parental rights was
warranted on the grounds of his incarceration. See Ariz. Rev. Stat. (A.R.S.)
§ 8-533(B)(4).3 The court also found severance was in the Children’s best
interests and entered an order terminating Father’s parental rights. Father
timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A),
12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).

                                DISCUSSION

I.     Reunification Efforts Would Have Been Futile.

¶6            Father argues the juvenile court erred in terminating his
parental rights without finding DCS had made a diligent effort to provide
him with reunification services. Father concedes that reunification services
are not required by statute where, as here, severance is sought based upon
the parent’s incarceration. Nevertheless, Father contends a diligent-efforts
finding is necessary to ensure a parent is not unconstitutionally deprived
of his fundamental right to parent without due process.

¶7            We generally review constitutional issues de novo. Brenda D.
v. DCS, 243 Ariz. 437, 442, ¶ 15 (2018) (citing State v. Nordstrom, 230 Ariz.
110, 115, ¶ 17 (2012)). However, even if there may be a general
constitutional obligation to provide reunification services, “there is no
constitutional mandate to undertake reunification efforts that are futile.”



3      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                       3
                         BRANDON H. v. DCS, et al.
                           Decision of the Court

James H. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 1, 2, ¶ 8 (App. 2005) (citing
Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 193, ¶ 42 (App. 1999)).

¶8            A parent’s rights may be severed when “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). This Court has previously
held that reunification services are futile where severance is sought on the
grounds of a lengthy incarceration:

       The damage to the parent-child relationship that justifies
       severance stems from the enforced physical separation of the
       parent from the child, and nothing the Department has to
       offer in the way of services can affect that reality. Nor could
       [the parent] by participating in services remedy his inability
       to provide a normal home for the children for the period for
       which he will be incarcerated.

James H., 210 Ariz. at 3, ¶ 9; accord James S. v. Ariz. Dep’t of Econ. Sec., 193
Ariz. 351, 354, ¶ 14 n.4 (App. 1998). This conclusion remains sound. Thus,
to the extent any general constitutional obligation to provide reunification
services exists, it was not violated here.

¶9             Father does not otherwise challenge the juvenile court’s
conclusion that his incarceration deprived the Children of a normal home
for a period of years, see A.R.S. § 8-533(B)(4), and thus has waived and
abandoned any contention that the court erred in granting severance on this
basis, see Crystal E. v. DCS, 241 Ariz. 576, 577, ¶ 5 (App. 2017) (citing State v.
McCall, 139 Ariz. 147, 163 (1983), and Christina G. v. Ariz. Dep’t of Econ. Sec.,
227 Ariz. 231, 234, ¶ 14 n.6 (App. 2011)). Accordingly, we affirm the court’s
conclusion that DCS proved the statutory ground for severance.

II.    DCS Proved Termination Was in the Children’s Best Interests by
       a Preponderance of the Evidence.

¶10            Father argues the juvenile court abused its discretion by
finding termination was in the Children’s best interests because he shares a
bond with them and has made efforts to improve his ability to parent. We
review the best-interests finding for an abuse of discretion and will reverse
only if “as a matter of law, no reasonable fact-finder could have found the
evidence satisfied the applicable burden of proof.” Titus S. v. DCS, 244 Ariz.
365, 369, ¶ 15 (App. 2018) (citing Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 47, ¶ 8 (App. 2004), and Denise R. v. Ariz. Dep’t of Econ. Sec., 221
Ariz. 92, 94-95, ¶¶ 9-10 (App. 2009)).


                                        4
                        BRANDON H. v. DCS, et al.
                          Decision of the Court

¶11           The existence of a bond between the parent and child,
“although a factor to consider, is not dispositive in addressing best
interests.” Dominique M. v. DCS, 240 Ariz. 96, 98, ¶ 12 (App. 2016) (citing
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013)).
Rather, the juvenile court must consider all relevant facts and determine,
on a case-by-case basis, whether a preponderance of the evidence supports
a finding that the child “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. at 332, 334, ¶ 6 (App. 2004); accord
Demetrius L., 239 Ariz. at 4, ¶ 16. Generally, a child will benefit from the
opportunity for permanency in lieu of remaining in a situation where a
parent maintains parental rights but is unavailable to assume parental
responsibilities. See Oscar O., 209 Ariz. at 337, ¶ 16 (quoting Maricopa Cty.
Juv. Action No. JS-6520, 157 Ariz. 238, 243 (App. 1988)). The court may also
consider whether the existence of a statutory ground for severance will
have a negative effect upon the child. Bennigno R., 233 Ariz. at 350, ¶ 23
(quoting Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App.
1988)).

¶12           Here, the juvenile court found that Father’s efforts to engage
in services and maintain contact with the Children while incarcerated,
although commendable, were “no substitute for the consistent and personal
contact required to maintain or build a relationship with . . . two young
children.” Accordingly, “[t]he hard reality remain[ed] that [Father] will be
a stranger to both [the Children] upon his release” and will require even
more time to build a bond, establish a suitable home, and demonstrate he
can remain drug-free. Meanwhile, the Children were placed with their
maternal grandmother, who was meeting their needs and willing to
provide a safe, stable, and permanent home.

¶13           The record supports these findings and provides an adequate
basis to conclude that termination is in the Children’s best interests. We
will not second-guess the juvenile court’s assessment of the evidence on
appeal. See Oscar O., 209 Ariz. at 334, ¶ 4 (“A juvenile court as the trier of
fact in a termination proceeding is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.”) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 4 (App. 2002)). Accordingly, we find no abuse of discretion.




                                       5
                       BRANDON H. v. DCS, et al.
                         Decision of the Court

                              CONCLUSION

¶14           The juvenile court’s order terminating Father’s parental rights
to the Children is affirmed.




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




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