                                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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                           ADES v. ROCKY J., O.K.
                            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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                          ADES v. ROCKY J., O.K.
                           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.




                                      6
                          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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                          ADES v. ROCKY J., O.K.
                           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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                         ADES v. ROCKY J., O.K.
                          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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