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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               RAY M., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, L.M., Appellees.

                              No. 1 CA-JV 18-0320
                                FILED 1-24-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD33617
                    The Honorable Sara J. Agne, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
                            RAY M. v. DCS, L.M.
                            Decision of the Court



                      MEMORANDUM DECISION

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


W I N T H R O P, Judge:

¶1            Ray M. (“Father”) appeals the juvenile court’s order
terminating his parental rights to L.M. (“the child”). Father argues
insufficient evidence supported: (1) the court’s termination of his parental
rights due to the length of his incarceration pursuant to Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(4); and (2) the court’s finding that
termination of his parental rights was in the best interest of the child. For
the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             Jordan S. (“Mother”) gave birth to the child in late 2015. For
the first eight months, Mother and Father lived together and cared for the
child, but in 2016, Father was convicted of burglary. He began serving a
thirteen and a half years’ sentence in July 2016 with the earliest possible
release date being January 2027. His latest release date is 2030.

¶3            While Father was incarcerated, Mother left the child at a
relative’s home and did not return for her. Mother suffers from bipolar
disorder and refuses any type of mental health treatment. She also has a
long history of substance abuse and is currently on probation for drug
possession. The Arizona Department of Child Safety (“DCS”) took
temporary custody of the child and filed a petition on December 30, 2016,
to adjudicate the child dependent as to Mother and Father. The juvenile
court found the child dependent as to both Mother and Father.

¶4           In September 2017, DCS moved to change the child’s case plan
to severance and adoption. The court initially denied the motion but later



1      We view these facts in the light most favorable to affirming the
juvenile court’s order. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547,
549, ¶ 7 (App. 2010).



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                           RAY M. v. DCS, L.M.
                           Decision of the Court

granted DCS’ request. Father contested the allegations in the motion to
terminate his parental rights.2

¶5            The juvenile court held Father’s termination adjudication
hearing on June 12, 2018. At the beginning of the hearing and over the
objection of DCS, Father’s counsel moved to change the child’s physical
custody, arguing the child should be placed in the care of Mother’s aunt.
The court then heard testimony regarding both the motion for termination
of parental rights and the motion for change in physical custody.

¶6             Both Father and DCS Specialist Jeffery Hanson (“Hanson”)
testified. Hanson testified that he did not believe Father ever had a
relationship with the child and Father could not establish a normal
relationship with the child now due to his incarceration. In addition,
Hanson stated he never received communication and/or items—such as
cards, letters, or gifts—from Father for the child. Hanson admitted on
cross-examination that he never attempted to provide any services to Father
or to arrange visits with the child, despite Father’s requests for visitation
being documented in the child’s DCS case file.3 Ultimately, Hanson opined
that it would be in the child’s best interest if Father’s parental rights were
severed, and he referenced the child’s various medical needs and her
stability at her foster care placement as support for his opinion. Regarding
the motion for change in physical custody, Hanson testified it was not in
the child’s best interest because the change would disrupt her
developmental process. At the time of the hearing, the child had lived with
the foster family for over a year.

¶7            Father testified he lived with Mother and the child from the
time the child was born until he was incarcerated, and thereafter he had
videoconference visits with the child until DCS took custody of her in

2      Mother also contested the allegations in the motion but failed to
timely appear at the termination adjudication hearing.

3       Hanson testified that he previously agreed to order a psychological
evaluation of the child to determine whether visits to Father in prison
would be appropriate, but he never initiated the evaluation. The record
reflects that the child was only eight months old when Father was
incarcerated. By the time of the termination adjudication hearing, she was
two years old and only “just beginning to speak and articulate her basic
needs and wants using short phrases.”




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                            RAY M. v. DCS, L.M.
                            Decision of the Court

December 2016. In support of his testimony, he produced photographs of
him and the child together before he was incarcerated. Father also
explained he sent multiple letters to the child’s first caseworker, which is
why Hanson never received any written communication from him. In
addition, Father testified he left one voicemail for Hanson requesting
updates on the child and to schedule a visit, but Hanson never responded.
Father stated he did not think severance of his parental rights was in the
child’s best interest and, but for DCS’ failure to respond to his requests, he
would still have a relationship with the child.

¶8           Ultimately, the motion to change physical custody was
denied and the court severed both Mother and Father’s parental rights.
Father timely appealed the juvenile court’s order.4 We have jurisdiction
pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1) and
Arizona Rule of Procedure for the Juvenile Court 103(A).

                                  ANALYSIS

       I.     Standard of Review

¶9            Although parents possess a fundamental right to the care,
custody, and management of their child, it is not absolute. See Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982)). To sever parental rights, the juvenile court must find by
clear and convincing evidence one statutory ground enumerated in A.R.S.
§ 8-533(B). Id. at ¶ 22. In addition, the court must find by a preponderance
of the evidence that termination is in the best interest of the child. Id.

¶10            The juvenile court retains great discretion in weighing and
balancing the interests of the child, parent, and state. Cochise Cty. Juv. Action
No. 5666-J, 133 Ariz. 157, 160 (1982). We will not disturb the juvenile court’s
determination absent an abuse of discretion. See Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002). Because the juvenile court
is in the best position to observe the parties, judge the parties’ credibility,
and make appropriate factual findings, we will not reweigh the evidence;
we will look only to determine if there is evidence to sustain the court’s
ruling. Id.




4      Mother originally joined Father in this appeal, but she later
requested this court dismiss her from the appeal pursuant to Arizona Rule
of Procedure for the Juvenile Court 106(G)(1).


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                             RAY M. v. DCS, L.M.
                             Decision of the Court

       II.     Termination Pursuant to A.R.S. § 8-533(B)(4)

¶11           Relying on Arizona Department of Economic Security v. Rocky J.,
234 Ariz. 437 (App. 2014), Father argues the evidence presented at the
termination adjudication hearing required the juvenile court to find against
the termination of his parental rights. DCS notes Father does not challenge
any of the juvenile court’s specific findings but instead asks this court to
impermissibly reweigh the evidence and find that the juvenile court erred.

¶12            Parental rights may be terminated if a parent has been
convicted of a felony and will be incarcerated for a length of time that
would deprive the child of a normal home with that parent for a period of
years. A.R.S. § 8-533(B)(4). There is no “bright line” that determines when
a parent’s rights should be severed due to the length of their incarceration,
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246 (2000), but “[b]y itself, the
length of a parent’s sentence is not dispositive,” Jesus M., 203 Ariz. at 281,
¶ 9. The Arizona Supreme Court outlined six relevant factors in Michael J.
to assist the juvenile court in conducting an individualized, fact-specific
inquiry when faced with a termination petition based on A.R.S. § 8-
533(B)(4). Michael J., 196 Ariz. at 251-52, ¶ 29. The factors include:

       (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.

¶13             Father argues the circumstances in this case are similar to
Rocky J., and therefore the juvenile court should have determined severance
was inappropriate. In Rocky J., the father was incarcerated at the time of the
child’s birth, and the mother abandoned the child. Rocky J., 234 Ariz. at 438-
39, ¶¶ 2-4. The court appointed the maternal grandmother as the child’s
guardian, and she made active efforts to prevent the father from
communicating with the child. Id. at 439, ¶ 6. One year before the father’s
release date, the Arizona Department of Economic Security (“ADES”)
petitioned to terminate both the mother and father’s parental rights. Id. at
¶ 8. The court ultimately refused to sever the father’s parental rights,



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                              RAY M. v. DCS, L.M.
                              Decision of the Court

finding the Michael J. factors weighed in the father’s favor. Id. at ¶ 10. ADES
appealed the decision and this court affirmed the juvenile court’s decision.
Id. at 438, ¶ 1. This court stated, “[a]lthough the juvenile court did not
expressly review or make findings on each 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 [f]ather’s parental
rights.” Id. at 441, ¶ 18. Specific to the first factor, this court determined:

       [A]dmittedly the evidence showed that Father had no
       relationship with Child at the beginning of his 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. . . . 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.

Id. at 442, ¶ 18.

¶14            Here, Father asserts that, because Hanson testified he did not
facilitate Father’s communication with the child, the juvenile court should
have found the termination of Father’s parental rights was inappropriate
due to DCS’ interference—just as this court found in Rocky J. We disagree
with Father’s argument because the facts in this case are distinguishable.

 ¶15           In Rocky J., this court did not rely solely on the first factor
when making its decision. Instead, the record in that case demonstrated
four of the six Michael J. factors weighed in the father’s favor and therefore
supported the juvenile court’s decision. Id. at 441-42, ¶¶ 18-21. Here, the
juvenile court clearly considered the totality of the circumstances and
expressly found factors one, two, three, and five weighed in favor of
termination; factor six weighed against termination; and factor four
weighed neither for nor against termination. The evidentiary record
supports the juvenile court’s findings; accordingly, it did not abuse its
discretion in severing Father’s parental rights pursuant to A.R.S. § 8-
533(B)(4).

       III.    Best Interest of the Child

¶16          Father next asserts that DCS failed to prove by a
preponderance of the evidence that termination of his parental rights
would be in the best interest of the child. Father argues that the child will
only be eleven years’ old when he is released, therefore, it would be best for


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                            RAY M. v. DCS, L.M.
                            Decision of the Court

him to resume care for the child when he is released. DCS again argues that
Father “does not challenge any of the juvenile court’s specific findings;
instead, he merely highlights portions of his own testimony . . . and invites
this Court to reweigh the evidence and reach a different [conclusion].”

¶17            To support a best interest finding, DCS must prove that the
child will affirmatively benefit from the termination or be harmed by the
continuation of the relationship. Maricopa Cty. Juv. Action No. JS-500274, 167
Ariz. 1, 5 (1990). The best interest requirement may be met if, for example,
the petitioner proves a current adoptive plan exists for the child, id. at 6, or
demonstrates the child is adoptable, Maricopa Cty. Juv. Action No. JS-501904,
180 Ariz. 348, 352 (App. 1994).

¶18           In the termination order, the juvenile court found that the
child was adoptable at the time of severance and continuing the parent-
child relationship would be detrimental because neither Mother nor Father
could provide a safe and stable environment for the child in the near future.
Although adoptive parents had not been found at the time of severance, the
juvenile court concluded active efforts were being made to find an adoptive
placement for the child, including the foster parents and relatives of Mother
and Father.

¶19            On this record, we find the juvenile court did not abuse its
discretion in finding that severance of Father’s parental rights was in the
child’s best interest.

                               CONCLUSION

¶20           The juvenile court’s order severing Father’s parental rights is
affirmed.




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




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