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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                         v.

                           ANITA P., M.M., Appellees.

                              No. 1 CA-JV 19-0111
                               FILED 9-24-2019


            Appeal from the Superior Court in Maricopa County
                               No. JS19479
                   The Honorable Jose S. Padilla, Judge

                                   AFFIRMED


                                    COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Burguan Strickman Law, PLLC, Phoenix
By Jessica J. Burguan, Brian M. Strickman
Counsel for Appellee Anita P.
                    MICHAEL M. v. ANITA P., M.M.
                        Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Samuel A. Thumma joined.


C R U Z, Judge:

¶1           Michael M. (“Father”) appeals the juvenile court’s order
terminating his parental relationship to his child, M.M. For the following
reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2           M.M. was born in July 2008 to Father and Saundra P.
(“Mother”). In December 2010, Father was incarcerated for a class 2 felony
sexual assault, and he has been continuously incarcerated ever since.
Father was ultimately convicted and sentenced to ten years in prison on
November 9, 2011, with a maximum release date of December 1, 2020.
Father alleges that he has an anticipated early release date in September
2019.

¶3          In a prior dependency action in 2017, Appellee Anita P., who
is M.M.’s maternal grandmother, was granted permanent guardianship
over M.M. pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-871.
Mother subsequently passed away in December 2017.

¶4            In February 2018, Appellee filed a petition for termination of
Father’s paternal rights based on both the nature of his felony conviction
and the length of felony sentence pursuant to A.R.S. § 8-533(B)(4). Appellee
also expressed an interest in adopting M.M.

¶5            After a three-day severance adjudication ending in early
March 2019, the court granted the petition based on length of felony
sentence, and Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(1).




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                      MICHAEL M. v. ANITA P., M.M.
                          Decision of the Court

                                DISCUSSION

I.     The Juvenile Court Did Not Err in Allowing Appellee’s Termination
       Petition to Proceed While Guardianship Was in Place

¶6             Father argues that Appellee cannot simultaneously be a
permanent guardian and petition to terminate a parent’s rights. But under
A.R.S. § 8-533(A), “[a]ny person or agency that has a legitimate interest in
the welfare of a child, including, but not limited to, a relative . . . may file a
petition for the termination of the parent-child relationship.” (emphasis
added). The statute does not exclude permanent guardians. Appellee is
both the maternal grandmother and the permanent guardian of M.M.
Appellee has played the role of caregiver for almost the entirety of M.M.’s
life, even while Mother was alive. As such, Appellee has a legitimate
interest in the welfare of the child, and nothing precluded her from filing a
severance petition.

¶7             Father argues that “[a]s a matter of law, the Juvenile Court
erred in allowing a termination action to move forward while there was a
court-appointed Title 8 Guardian for the child” and that “procedurally,
there must be a finding to revoke the guardianship through a showing of
change of circumstances by clear and convincing evidence . . . before the
[J]uvenile [C]ourt should be terminating a parent’s rights.” However,
Father offers no legal authority to support this proposition. Guardianship
proceedings and the termination of the parental relationship are two
independent legal proceedings, and there is nothing in Title 8 to suggest
that the existence of a Title 8 guardianship would preclude termination of
the parent-child relationship.

¶8           Father offers that a guardianship order is a “final order of the
court,” and so “there is no reason to upset the legal posture of his child
being under a guardianship.” However, guardianship placements are
anything but final, and revocation of a guardianship order is expressly
authorized by statute. See A.R.S. § 8-873. Thus, the court did not err in
considering a petition to terminate paternity while a guardianship was in
place.

II.    Termination of Parent-Child Relationship

¶9            Father also argues that the court erred in terminating the
parental relationship pursuant to A.R.S. § 8-533(B). In order to terminate a
parental relationship, the juvenile court must make a two-part inquiry.
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018). First, the
court must find by clear and convincing evidence at least one of the grounds


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                      MICHAEL M. v. ANITA P., M.M.
                          Decision of the Court

for termination in A.R.S.§ 8-533(B). Id. Second, the court must find by a
preponderance of the evidence that severance is in the child’s best interests.
Id. We will “accept the juvenile court’s findings of fact if reasonable
evidence and inferences support them, and will affirm a severance order
unless it is clearly erroneous.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9
(2016).

       A.      Reasonable Evidence Supports the Juvenile Court’s
               Determination that the Statutory Ground for Termination
               Was Established

¶10            The juvenile court terminated Father’s parental relationship
pursuant to A.R.S. § 8-533(B)(4). As applicable here, this section of the
statute permits termination where a parent has been convicted 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).
Pursuant to A.R.S. § 8-533(B)(4), the juvenile court considers “all relevant
factors, including, but not limited to” 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.

Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29 (2000).

¶11           The analysis of these factors is an “individualized, fact-
specific inquiry.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 450,
¶ 15 (App. 2007). The juvenile court is not required to make express
findings on each factor, and its findings will be affirmed if supported by
reasonable evidence. Id. at 451-52, ¶ 19. Here, the record contains
reasonable evidence to support the juvenile court’s decision to terminate
the parental relationship.

¶12           As to the first factor, Father has been continuously
incarcerated since M.M. was two years old. Although Father asserts that he
parented M.M. the first three years of M.M.’s life and up to his
incarceration, and that he and M.M. were “best friends,” Father has been
incarcerated for the overwhelming majority of M.M.’s life. Additionally,


                                        4
                     MICHAEL M. v. ANITA P., M.M.
                         Decision of the Court

psychologist Dr. Toma conducted a home, bonding, and attachment
evaluation prior to Mother’s death and during Father’s incarceration. Dr.
Toma testified that M.M. “doesn’t know [Father]” and that M.M. “has never
been parented by [Father] probably that he can remember” because “[w]e
start having memories about the age of two.”

¶13            The second factor concerns the degree to which M.M. and
Father’s relationship can be continued and nurtured during his
incarceration. Michael J., 196 Ariz. at 252, ¶ 29. Father testified that Mother
brought M.M. to visit Father 30-40 times during the time Father was
incarcerated, and that he and M.M. exchange letters and speak on the
phone. Father additionally claims that he has paid $15,000 to support M.M.
in the years during his incarceration. However, Appellee testified that
Father has never contributed to the support of M.M. Appellee further
testified that M.M. refused to accept Father’s phone calls since March 2018
and no longer wishes to have contact with him. A court-ordered
investigation from August 2018 corroborated that M.M. had refused contact
with Father since January 2018. The last time M.M. visited Father in prison
was April or May of 2017.

¶14           The third factor considers the age of the child and the
likelihood incarceration would deprive M.M. of a normal home. Id. As
noted above, M.M. was only two years old when Father was first
imprisoned, and Father has been continuously imprisoned for the past
eight years. Even if Father’s testimony regarding his early release date in
September 2019 is accurate, the court must consider the entire period of the
parent’s incarceration, not just the amount of time remaining on the
sentence. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 281, ¶ 8 (App.
2002). Father has not been able to provide M.M. with a normal home life,
and the court found that M.M. “has been deprived for eight years from a
normal parent-child relationship.”

¶15            The fourth factor evaluates the length of the sentence. Michael
J., 196 Ariz. at 252, ¶ 29. As stated above, Father has been incarcerated for
about eight years and was sentenced to ten years in prison. Father has been
incarcerated for over two-thirds of M.M.’s life.

¶16          The fifth factor considers the availability of another parent to
provide a normal home life. Id. Mother has been deceased since December
2017. While Father is in prison, there is no natural parent to provide a
normal home life for M.M.




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                      MICHAEL M. v. ANITA P., M.M.
                          Decision of the Court

¶17            Finally, the sixth factor concerns the effect of the parent’s
absence on the child. Id. As a result of Father’s incarceration, M.M.
identifies his grandmother as his only day-to-day parental figure. M.M.’s
bond to Appellee is such that M.M. desires to continue to reside with her at
least until his age of majority.

¶18          Reasonable evidence and inferences from the record support
each of the six factors outlined in Michael J. Thus, the juvenile court’s
termination of the parental relationship pursuant to A.R.S. § 8-533(B)(4) was
not erroneously decided.

¶19           Father argues that the court should have considered the
strength of the parent-child relationship existing when Father’s
incarceration began, the degree to which the relationship was continued
and nurtured during his incarceration, and the length of Father’s
incarceration. The court did expressly consider these factors. Regarding
the strength of the relationship prior to incarceration, the court stated that
less than “one-third of [M.M.’s] life is what Father enjoyed with the child.”
The juvenile court also inferred, based on the record, that the child likely
witnessed domestic violence between Father and Mother prior to Father’s
incarceration and considered that a detrimental impact on M.M.

¶20           The court also evaluated the relationship between M.M. and
Father during incarceration, finding the only evidence of Father’s efforts to
maintain a relationship were mailing letters, and any prior visitation was
“at the behest of” Mother and her family before her passing. Additionally,
the court acknowledged Father’s testimony that he was set to be released
early in September 2019. However, in weighing this testimony, the court
also considered the likelihood of early release, as “[Father] had suffered 10
infractions while he’s in [the Department of Corrections].” The court made
express findings on the factors Father contests, and the findings are
supported by reasonable evidence. To the extent Father asks that this court
reweigh the evidence and the Michael J. factors, such a reweighing by an
appellate court is improper. See Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz.
332, 336, ¶ 14 (App. 2004). The juvenile court considered the appropriate
factors and did not abuse its discretion by finding a basis for severing
Father’s parental rights.

       B.     Reasonable Evidence Supports the Court’s Best Interests
              Determination

¶21           Father argues there is no evidence that termination of Father’s
parental relationship was in M.M.’s best interests.



                                       6
                     MICHAEL M. v. ANITA P., M.M.
                         Decision of the Court

¶22           Termination is in the child’s best interests when evidence
demonstrates the child “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship.” Oscar
O., 209 Ariz. at 334, ¶ 6. “[C]ourts must consider the totality of the
circumstances existing at the time of the severance determination, including
the child’s adoptability and the parent’s rehabilitation.” Alma S., 245 Ariz.
at 148, ¶ 1.

¶23           Evidence of the availability of an adoption plan, a child’s
adoptability, and that an existing placement is meeting the child’s needs
supports a finding that the child would benefit from termination of the
parental-child relationship. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz.
345, 350, ¶ 23 (App. 2013); see also Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 376, 377, ¶ 5 (App. 1998); see also Maricopa Cty. Juv. Action No. JS-
501904, 180 Ariz. 348, 352 (App. 1994).

¶24          Father argues that he had consistent contact with M.M. until
March 2018, and there was no evidence that M.M.’s continued relationship
with Father would be detrimental. However, the consistency of contact
between Father and M.M. was in dispute. Appellee testified that she only
brought M.M. to visit Father one time during his incarceration in April or
May 2017, though she also testified that she was aware of some visits that
took place between Father and M.M. when M.M. was younger. However,
more recent visits have been less frequent, and as explained above, M.M.
no longer wants to have contact with Father and has refused phone calls
from him. Father has been in prison for most of M.M.’s life, and the court
did not abuse its discretion by finding that it would be detrimental to
remove M.M. “from the stable home he has had for the last two years.”

¶25           Father further argues that there is no benefit to terminating
Father’s parental relationship, and that stability and security are attainable
through the guardianship placement. However, severance and adoption
provide the type of finality, permanency, and security that is not possible
through a guardianship. Appellee seeks to adopt M.M. It is uncontested
that M.M.’s current placement with Appellee is meeting M.M.’s needs, and
he wants to continue to reside with Appellee. Thus, the court’s best interest
finding was not in error.

III.   Father Has Shown No Error Regarding Juvenile Court’s Factual
       Findings

¶26            Father argues that the court failed to enter factual findings in
its written order, violating A.R.S. § 8-538(A) and Arizona Rule of Procedure



                                       7
                      MICHAEL M. v. ANITA P., M.M.
                          Decision of the Court

for the Juvenile Court (“Rule”) 66(F)(2)(a). However, father has waived this
argument by failing to object to the court’s factual findings at the trial level.

¶27            “We generally do not consider objections raised for the first
time on appeal. This is particularly so as it relates to the alleged lack of
detail in the juvenile court’s findings.” Christy C., 214 Ariz. at 452, ¶ 21
(citations omitted). Alleged errors should be called to the juvenile court’s
attention for correction, as the juvenile court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Oscar O., 209 Ariz. at 334, ¶ 4.

¶28            Citing Logan B. v. Dep’t of Child Safety, 244 Ariz. 532 (App.
2018), Father asserts that waiver should not apply. In Logan B., this court
did not find waiver where the final written order at issue was devoid of any
factual findings. See Logan B., 244 Ariz. at 536, ¶ 11. However, in the instant
case, Father concedes there is at least one factual finding in the order.
Moreover, “Logan B. noted that ‘[t]he waiver doctrine is not “an unalterable
rule”’ and ‘the decision to find waiver is discretionary.’” Aleise H. v. Dep’t
of Child Safety, 245 Ariz. 569, 573, ¶ 12 (App. 2018) (quoting Logan B., 244
Ariz. at 536, ¶¶ 11, 9); see also Aleise H., 245 Ariz. at 573, ¶ 13 (“Because the
decision to find waiver is discretionary, in the exercise of that discretion, on
the record presented and to prevent avoidable delay, this court concludes
that [m]other has waived any claim she may have had that the superior
court did not make adequate best interests findings.”).

¶29           Waiver notwithstanding, Father has not shown error. A.R.S.
§ 8-538(A) requires that orders terminating the parent-child relationship
“shall be in writing and shall recite the findings on which the order is
based.” Rule 66(F)(2)(a) additionally requires the court to “[m]ake specific
findings of fact in support of the termination of parental rights.” This court
has interpreted Rule 66(F)(2)(a) to require that the court specify at least one
factual finding sufficient to support each of those conclusions of law. Ruben
M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240, ¶ 22 (App. 2012).

¶30             Here, the court terminated the parental relationship based on
the length of Father’s felony conviction, see A.R.S. § 8-533(B)(4), noting he
“has been incarcerated for over two thirds of child’s life.” In its written
order, the court also found that “[t]ermination furthers the ultimate goal of
adoption by [Appellee] allowing for child to have permanency and stability
until the age of majority.” The order additionally noted that M.M. has been
residing with Appellee and “wants to continue to reside with [Appellee]
until at least the age of majority.” Thus, Father has not established that the




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                    MICHAEL M. v. ANITA P., M.M.
                        Decision of the Court

court’s findings were insufficient to support severance of the parental
relationship.

                              CONCLUSION

¶31           We affirm the juvenile court’s order terminating the parental
relationship between Father and M.M.




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




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