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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              JAMES M., Appellant,

                                         v.

     DEPARTMENT OF CHILD SAFETY, O.M., J.M., B.M., Appellees.

                              No. 1 CA-JV 15-0388
                                FILED 5-26-2016


           Appeal from the Superior Court in Maricopa County
                             No. JD21119
          The Honorable William R. Wingard, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee DCS
                          JAMES M. 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 Patricia K. Norris joined.


J O N E S, Judge:

¶1            James M. (Father) appeals the juvenile court’s order
terminating his parental rights to O.M., J.M., and B.M. (collectively, the
Children), alleging the Department of Child Safety (DCS) failed to prove
the statutory grounds for severance by clear and convincing evidence. For
the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            On December 29, 2011, Father was arrested after attempting
to sell two speed limit signs he had stolen. That evening, officers served a
search warrant at the mobile home where Father was living with the
Children, their adult half-sister, two nieces, and mother (Mother). Within
a locked room only Father had access to, officers found methamphetamine,
drug paraphernalia, and a rifle. The officers also observed the Children,
then ages seven, five, and three, were dirty and disheveled, the home was
overcrowded, the kitchen contained only rotten food, and the roof was
caving in and appeared to leak. Mother later admitted the living situation
was “not the best,” but the family was unable to rent an apartment “due to
having seven Chihuahua dogs and 4 large dogs.”

¶3          The Children were removed from the home, and, in March
2012, DCS filed a dependency petition alleging the Children were
dependent as to Father on the grounds of neglect.2 Father contested the


1      We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).

2       Although paternity had not been established for O.M. at the time the
petition was filed, genetic testing, initiated by DCS, later confirmed Father
is her biological parent.



                                     2
                         JAMES M. v. DCS, et al.
                          Decision of the Court

dependency but submitted the issue to the juvenile court on the record. In
July 2012, the court adjudicated the Children dependent as to Father and
confirmed a case plan of family reunification.3

¶4            Meanwhile, Father pleaded guilty to trafficking stolen
property and misconduct involving weapons, both felony offenses. He
admitted having been on probation for a prior felony conviction for
possession of a dangerous drug at the time of the offenses and, in April
2012, was sentenced to seven and a half years’ imprisonment with credit for
111 days of presentence incarceration. He had previously been incarcerated
for two years, from 2007 to 2009.

¶5           DCS encouraged Father to participate in available services
while incarcerated, and he completed classes on parenting, diversity, job
readiness, and life skills. He also participated in community-based
substance abuse support groups.

¶6            Father wrote to the Children at least once per month.
Between February and May 2013, while the Children were placed with their
paternal aunt (Aunt), the Children visited Father once and spoke with him
on the telephone. But, when Aunt became unable to care for the Children
and the Children were no longer placed together, it became difficult to
coordinate phone calls. Father requested more contact, but all three
Children exhibited negative, aggressive behaviors and required intensive
behavioral health services to ensure their success at home and in school,
and it was reported these behaviors increased following contact with
Father. The Children’s therapist therefore recommended only written
correspondence with Father. The DCS case manager reported the Children
were reluctant to write to Father despite encouragement from both DCS
and their placements to do so. Father remains incarcerated with an
anticipated release date between December 2017 and March 2018.

¶7           During an unsupervised visit with Mother in February 2014,
the Children witnessed Mother’s boyfriend commit a murder, prompting
the juvenile court to adopt a concurrent case plan of severance and
adoption. Thereafter, Mother stopped participating in services altogether,
and the case plan was changed, without objection, to severance and
adoption. DCS filed a motion to terminate the parent-child relationship as
to both parents, alleging severance was warranted as to Father as a result



3     The Children were adjudicated dependent as to Mother on the
grounds of neglect and substance abuse in April 2012.


                                    3
                          JAMES M. v. DCS, et al.
                           Decision of the Court

of his lengthy incarceration. Father contested the allegations and the matter
proceeded to trial in September 2015.

¶8            In addition to providing information regarding Father’s
incarceration, the DCS case manager testified the Children never
mentioned Father and did not appear to have any relationship with him
prior to his most recent incarceration. She described the Children as
adoptable and bonded to the current placement and testified the placement
was willing and able to adopt the Children and meet their needs. The DCS
case manager also testified severance was in the Children’s best interests
because it would provide them the opportunity to have a permanent, safe,
and stable home. Although she believed the Children love their father, she
testified the uncertainty of waiting for Father to be released would only
continue the inconsistency and trauma they had experienced for years.

¶9             At trial, Father testified he had been incarcerated for six of
B.M.’s eleven years, five of J.M.’s nine years, and four of O.M.’s seven years.
He earned approximately $32 per month working as a janitor, which he
spent on stamps and coffee. On cross-examination, Father admitted he
used methamphetamine with Mother when he was not incarcerated and
caring for the Children. Despite these circumstances, Father testified he had
a bond with the Children, he would be able to care for them upon his
release, and that they should be placed with family. He also testified he did
not anticipate his nine prior felony convictions would make finding a job
and a home for himself and the Children difficult, and stated he would
father the Children from prison by “writ[ing] to them, talk[ing] to them,
[and] visit[ing] with them.”

¶10           After taking the matter under advisement and considering
the Michael J. factors,4 the juvenile court found DCS had proven by clear

4      In Michael J. v. Arizona Department of Economic Security, our supreme
court held the juvenile court should “consider all relevant factors” in
making a decision on whether a sentence of imprisonment is sufficiently
long to deprive a child of a normal home for a period of years:

       [I]ncluding, but not limited to: (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



                                      4
                            JAMES M. v. DCS, et al.
                             Decision of the Court

and convincing evidence that termination of Father’s parental rights was
warranted because Father had been convicted of a felony and would be
incarcerated for a length of time that would deprive the Children of a
normal home for a period of years. Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(4).5
The court also found severance was in the Children’s best interests and
entered an order terminating Father’s parental rights.6 Father timely
appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A)(1) and Arizona Rule of Procedure for the
Juvenile Court 103(A).

                                 DISCUSSION

¶11            A parent’s rights may be terminated if the juvenile court finds
by clear and convincing evidence “[t]hat 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.”7 A.R.S. § 8-533(B)(4); Ariz. R.P. Juv. Ct. 66(C); Michael J., 196 Ariz.
at 249, ¶ 12. Father does not argue the evidence is insufficient to support
the juvenile court’s finding that his prison sentence was of sufficient length
to justify severance pursuant to A.R.S. § 8-533(B)(4), but only that DCS did
not provide appropriate reunification efforts. Father contends this resulted
in a violation of his “familial association due process rights” and that the
Michael J. factors were impermissibly “skewed by [DCS]’s inaction and
failure to provide services.”



       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.

196 Ariz. 246, 251-52, ¶ 29 (2000).
5     Absent material changes from the relevant date, we cite a statute’s
current version.

6      Mother’s parental rights to the Children were also terminated at this
time. She does not challenge this order and is not a party to this appeal.

7      The juvenile court must also find by a preponderance of the evidence
that severance is in the child’s best interests, Ariz. R.P. Juv. Ct. 66(C); Kent
K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005), but Father does not argue
insufficient evidence supports this finding.


                                        5
                          JAMES M. v. DCS, et al.
                           Decision of the Court

¶12            Here, throughout the case, DCS requested the juvenile court
make judicial findings that it was making reasonable efforts to reunify the
family. Father did not object to the requests or the forms of order, and the
court entered DCS’s requested findings in August 2012; January, July, and
September 2013; June, August, and November 2014; and March, July, and
September 2015. We review the court’s factual findings that DCS made
reasonable efforts to reunify the family for an abuse of discretion and will
affirm so long as there is substantial evidence to support them. Lashonda M.
v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 81-82, ¶ 13 (App. 2005) (citations
omitted).

¶13            DCS is not obligated by statute to provide reunification
services to a parent whose parental rights are terminated on the basis of a
lengthy incarceration. James H. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 1, 2,
¶¶ 6-7 (App. 2005) (comparing subsections (B)(8) and (B)(11) of A.R.S. § 8-
533, which impose an explicit duty upon DCS to provide reunification
services, with subsection (B)(4), which does not). And, although there may
be a separate constitutional obligation to engage in reunification efforts,
DCS need not undertake reunification efforts that are futile, but only those
with “a reasonable prospect of success.” Id. at ¶ 8 (citing Mary Ellen C. v.
Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999)). Nor is the
court required to “leav[e] the window of opportunity for remediation open
indefinitely.” Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577
(App. 1994) (citing Maricopa Cnty. Juv. Action No. JS-4283, 133 Ariz. 598, 601
(App. 1982)).

¶14            Under the circumstances presented here, we conclude
additional reunification services would have been futile. At the time of
trial, Father had been incarcerated for more than half of the Children’s lives,
and there was no evidence of any existing relationship between the
Children and Father. Moreover, Father had, at that time, at least two more
years of prison time and was completely unavailable to personally provide
for the Children’s physical and emotional needs. As in James H.:

       [P]rolonged incarceration is something neither [DCS] nor the
       parent could ameliorate through reunification services. The
       damage to the parent-child relationship that justifies
       severance stems from the enforced physical separation of the
       parent from the child, and nothing [DCS] has to offer in the
       way of services can affect that reality. Nor could [Father] by
       participating in services remedy his inability to provide a
       normal home for the children for the period for which he will
       be incarcerated.


                                      6
                          JAMES M. v. DCS, et al.
                           Decision of the Court

210 Ariz. at 3, ¶ 9.

¶15          That the Michael J. factors aligned in support of severance is
the natural result of Father’s lengthy incarceration. There is simply no
remedy for Father’s prolonged absence and resultant inability to provide
the Children a normal home for a period of years. See Maricopa Cnty. Juv.
Action No. JS-5609, 149 Ariz. 573, 575 (App. 1986) (defining a “normal
home” as “a home in which the respondent natural father has a presence”).

¶16           Even assuming there is a constitutional obligation to provide
reunification services when severance is sought under A.R.S. § 8-533(B)(4),
we conclude the juvenile court did not err in finding DCS made reasonable
efforts at reunification with regard to Father here; further services would
have been futile and were not required.

                              CONCLUSION

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




                                  :ama




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