                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                         JEFFREY P., Appellant,

                                   v.

          DEPARTMENT OF CHILD SAFETY, S.P., Appellees.

                         No. 1 CA-JV 15-0031
                          FILED 3-1-2016


           Appeal from the Superior Court in Navajo County
                       No. S0900JD201300017
              The Honorable Michala M. Ruechel, Judge

                             AFFIRMED


                              COUNSEL

Riggs Ellsworth & Porter, PLC, Show Low
By Michael R. Ellsworth
Counsel for Appellant

Arizona Attorney General's Office, Mesa
By Eric K. Knobloch
Counsel for Appellee DCS



                              OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
                          JEFFREY P. v. DCS, S.P.
                            Opinion of the Court

J O H N S E N, Judge:

¶1           We reaffirm in this case the principle that in considering
whether to terminate a parent's rights due to incarceration, the superior
court may but need not presume the parent will be released from prison
before completing his or her full term.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Jeffrey P. ("Father") is the parent of a child ("Child") born in
2013. Child was born substance-exposed because of methamphetamine use
by her mother. Within a month after Child's birth, the Department of Child
Safety ("DCS") filed a dependency petition alleging her parents failed to
participate in services and remain substance-free.1 Father stipulated to the
dependency, acknowledging his need for services and for help in
establishing a safe environment for Child, and the court returned Child to
him in September 2013.

¶3             In November 2013, Father was arrested and charged with
second-degree burglary, and DCS removed Child from Father's custody.
After Father was sentenced eight months later to a 2.5-year prison term, the
court changed the case plan from reunification to severance and adoption.
DCS then moved to terminate both parents' parental rights, alleging, inter
alia, that Father's incarceration would deprive Child of a normal home for
a period of years under Arizona Revised Statutes ("A.R.S.") section 8-
533(B)(4) (2016).2 Following trial on November 13, 2014, the superior court
granted the motion to terminate both parents' rights.

¶4            Father timely appealed the court's termination order.3 We
have jurisdiction pursuant to Article 6, Section 9 of the Arizona
Constitution, A.R.S. §§ 8-235(A) (2016), 12-2101(A)(1) (2016) and Rule
103(A) of the Arizona Rules of Procedure for the Juvenile Court.




1     Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
2     Absent material revision after the relevant date, we cite a statute's
current version.

3      Child's mother is not a party to this appeal.

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                             JEFFREY P. v. DCS, S.P.
                               Opinion of the Court

                                 DISCUSSION

¶5             The right to custody of one's child is fundamental, but it is not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds
detailed in A.R.S. § 8–533(B). Id. at 249, ¶ 12. Additionally, the court must
find by a preponderance of the evidence that termination is in the child's
best interest. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review
a termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).

¶6             As relevant here, § 8-533(B)(4) provides that a parent's rights
may be terminated if "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." In
Michael J., our supreme court set out a non-exclusive list of factors for courts
to consider in determining if a parent's prison sentence will deprive a child
of "a normal home for a period of years":

       (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.

196 Ariz. at 251–52, ¶ 29.

¶7             Father argues the superior court erred by failing to consider
the possibility he would be released early from prison. He was sentenced
to 2.5 years in prison beginning on July 10, 2014, with presentence
incarceration credit of 233 days, meaning that his term of incarceration was
scheduled to end in May 2016. At trial, Father testified he might qualify for
early release, which would allow him to be released on community
supervision in October 2015. Contrary to Father's contention, the superior
court plainly considered that he might be released before May 2016: Its




                                       3
                           JEFFREY P. v. DCS, S.P.
                             Opinion of the Court

order noted that Father's community supervision might begin as early as
October 2015.4

¶8             Father seems to argue the court erred by not finding that his
early release was a certainty. In exercising its broad authority to determine
each case on its facts, however, a court addressing the incarceration ground
for severance must consider the designated length of the sentence and may
consider the possibility of early release. See Michael J., 196 Ariz. at 251-52,
¶ 29; cf. Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 16 (App.
2014) (anticipated early release from incarceration "is a relevant factor" in
considering severance based on incarceration); Ariz. Dep't of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 550-51, ¶ 15 (App. 2010) ("As long as the juvenile
court considers the length of sentence, we find no error for it to also
consider the anticipated release date."). No authority requires the court to
presume an early release.

¶9             Father also argues that if he were released in October 2015, he
would have been incarcerated for only nine months from the date of the
amended court order severing his parental rights. But the relevant period
is the entire period of incarceration, not solely the time after entry of the
termination order. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280,
¶ 8 (App. 2002). ("We conclude the legislature used the words 'will be
deprived' in § 8-533(B)(4) to mean 'will have been deprived' in total,
intending to encompass the entire period of the parent's incarceration and
absence from the home.").

¶10           Father further argues that if released early, he would have
been incarcerated for fewer than two years, which he argues is too short to
amount to a "period of years" for purposes of § 8-533(B)(4). We need not
address that issue, however, because, as stated, the superior court was not
required to find Father would be released before the completion of his
entire term. Moreover, as Father acknowledged in oral argument, Child
would not necessarily have been returned to him immediately upon his
release from prison. His conditions of release might affect his ability to
interact with Child; beyond that, he still needed to complete parenting
classes, counseling and other services. Accordingly, the superior court
reasonably could conclude that more than two years would pass before
Father could be reunited with Child.



4      We take judicial notice of the fact that Father was no longer
incarcerated at the time of our oral argument on November 10, 2015. See
Ariz. R. Evid. 201.

                                       4
                           JEFFREY P. v. DCS, S.P.
                             Opinion of the Court

¶11           Relying on Matthew L., Father argues that notwithstanding his
incarceration, he has a strong relationship with Child. Like the parent in
that case, Father maintained contact with Child by writing letters and
sending a birthday card. See Matthew L., 223 Ariz. at 548, ¶ 4. Father also
requested visitation with Child, but DCS denied the request because it
concluded the travel was not in Child's best interest.

¶12            In Matthew L, we affirmed the superior court's denial of a
motion to terminate based on incarceration because reasonable evidence
supported the court's ruling. 223 Ariz. at 551, ¶ 19. We viewed the evidence
in that case in the light most favorable to sustaining the court's ruling and
emphasized the discretion vested in the superior court to consider and
weigh all relevant factors. Here, the superior court granted DCS's motion
to terminate Father's parental rights based on its review of the evidence,
and this court will not reweigh the evidence on which that court based its
ruling. See Rocky J., 234 Ariz. at 441, ¶ 15 (superior court "reasonably
concluded" insufficient evidence presented to support severance when
parent had been incarcerated for much of 12-year-old child's life but
expected to be released on parole seven months after severance trial).

¶13            Father contends the superior court failed to recognize the
relationship he had with Child for the first six months of her life. He
testified he saw Child every day during the month after her birth and that
she had been in his care for two months before his arrest. In deciding
whether to sever a parent's rights due to incarceration, however, the
superior court must consider not only the parent-child relationship at the
time the incarceration commences but also, how and whether that
relationship may be maintained during the incarceration. See Michael J., 196
Ariz. at 251, ¶ 29 (court must consider the "parent-child relationship
existing when incarceration begins" and the "degree to which the parent-
child relationship can be continued and nurtured during the
incarceration"). A DCS supervisor testified it is difficult to nurture a parent-
child relationship between a young child and an incarcerated parent:

       In the first few years of development, trust is the primary
       thing that we work on developing . . . . When a child is not —
       doesn't have that touch, doesn't learn that a parent is going to




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                           JEFFREY P. v. DCS, S.P.
                             Opinion of the Court

       come back and be there, that's where a child doesn't develop,
       and they develop sort of cognitive delays as a result of that.5

The record does not support Father's contentions that the court failed to
consider his historical relationship with Child or that the court failed to
consider any of the relevant factors. The record reveals evidence both of
Father's historical relationship with Child and the difficulties of
maintaining that relationship during Father's incarceration. See Michael J.,
196 Ariz. at 251, ¶ 29 (the superior court has discretion to consider each case
on its particular facts and in making its determination, can consider all
relevant factors).

¶14            Father also argues that to support severance based on
incarceration, DCS was required to offer evidence that he would not be able
to renew and continue his relationship with Child after his release. The
inquiry under § 8-533(B)(4), however, focuses on the child's needs during
the incarceration and not solely on whether the parent would be able to
continue the parent-child relationship after release. See A.R.S. § 8-533(B)(4)
(severance ground established if parent's sentence is "of such length that the
child will be deprived of a normal home for a period of years"); see also
Michael J., 196 Ariz. at 252, ¶ 29 (relevant factors include "the availability of
another parent to provide a normal home life" and "the effect of the
deprivation of a parental presence on the child at issue"); Maricopa County
Juv. Action No. JS-5609, 149 Ariz. 574, 575 (App. 1986) ("The 'normal home'
referred to in the statute relates to respondent's obligation to provide a
normal home, a home in which the respondent natural father has a
presence, and it does not refer to a 'normal home' environment created by
[others]."). Because Child's mother's parental rights already had been
terminated, the court found that due to Father's incarceration, there was "no
parent who can safely parent [Child] . . . nor is there likely to be one in the
near future." As a result, the court noted, by the time of Father's release and
possible reunification with Child, "she will have been deprived of a normal
home for a period of years (the vast majority of her life)."

¶15           Nothing in this Opinion should be taken to mean that a
sentence of 2.5 years, as a matter of law, will suffice to support severance
pursuant to § 8-533(B)(4). See Rocky J., 234 Ariz. at 441, ¶ 17; Christy C. v.

5      Father contends the court erred by relying on the supervisor's
testimony because the caseworker gave conflicting testimony. The superior
court, however, is in the best position to "judge the credibility of the
witnesses, and make appropriate findings." Jesus M., 203 Ariz. at 280, ¶ 4.



                                       6
                          JEFFREY P. v. DCS, S.P.
                            Opinion of the Court

Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 450, ¶ 15 (App. 2007) ("there is no
threshold level under each individual factor in Michael J. that either
compels, or forbids, severance"). The factual findings the superior court
must make before it orders severance of a parent's rights based on
incarceration are committed to the court's sound discretion.

                              CONCLUSION

¶16           The court in this case heard conflicting evidence. Although
the evidence did not compel the court to grant the motion to terminate
Father's rights, sufficient evidence supported the exercise of discretion by
the court to order severance. We therefore affirm.




                                   :ama




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