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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              PEDRO R., Appellant,

                                         v.

      DEPARTMENT OF CHILD SAFETY, E.R., and M.R., Appellees.

                              No. 1 CA-JV 16-0256
                                FILED 12-6-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD27918
                 The Honorable John R. Ditsworth, Judge

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee, Department of Child Safety
                           PEDRO R. v. DCS, et al.
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.


N O R R I S, Judge:

¶1             This appeal arises out of an order entered by the juvenile
court terminating Pedro R.’s parental rights to E.R. and M.R. under Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(4) (Supp. 2015) (severance of
parental rights based on length of felony sentence).1 Pedro first argues the
Department of Child Safety (“DCS”) presented insufficient evidence to
terminate his parental rights based on his felony sentence. Reviewing the
sufficiency of the evidence for an abuse of discretion, and viewing the
evidence presented at the termination hearing in the light most favorable to
upholding the juvenile court’s order, we reject this argument. See Mary Lou
C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004)
(appellate court reviews sufficiency of the evidence in termination
proceeding for an abuse of discretion) (citation omitted); Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010)
(appellate court views facts in the light most favorable to upholding the
juvenile court’s order) (citation omitted).

¶2           Second, Pedro argues, for the first time on appeal, the juvenile
court did not make the findings required by the Indian Child Welfare Act
(“ICWA”). Although the juvenile court did not make the required ICWA
findings, we nonetheless review the juvenile court’s findings for
fundamental error and find none. See Ruben M. v. Ariz. Dep’t of Econ. Sec.,
230 Ariz. 236, 239, ¶¶ 13-17, 282 P.3d 437, 440 (App. 2012) (reviewing
evidence at termination hearing for fundamental error when respondent
parent did not object in the juvenile court).




              1The Legislature has not amended the statutes cited in this
memorandum decision since the Arizona Department of Economic Security
(the precursor governmental entity to the Department of Child Safety) filed
its original dependency petition. Thus, we cite to the current version of the
statutes.


                                        2
                            PEDRO R. v. DCS, et al.
                             Decision of the Court
                                 DISCUSSION

I.     Termination Based on Length of Felony Sentence

¶3             Under A.R.S. § 8-533(B)(4), the juvenile court may terminate
the parent-child relationship if “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.” In
evaluating whether termination is warranted under A.R.S. § 8-533(B)(4), a
court should consider all relevant factors, including:

               (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[ren] at issue.

Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29, 995 P.2d 682,
687-88 (2000). No single factor compels or forbids severance. Christy C. v.
Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 450, ¶ 15, 153 P.3d 1074, 1079 (App.
2007).

¶4            Considering these factors here, the evidence presented to the
juvenile court at the termination hearing supports its decision to terminate
Pedro’s parental rights under A.R.S. § 8-533(B)(4). After police took Pedro
into custody in December 2013 in Nebraska, Pedro pled guilty to two felony
offenses, and the court sentenced Pedro to a prison term of eight to twelve
years. Pedro’s early release date is April 2019.

¶5            When Pedro’s incarceration began in 2013, M.R. was almost
six years old, and E.R. was over nine years old. Assuming Pedro will be
released in April 2019, by then he will have been incarcerated for roughly
half of both of the children’s lives. Additionally, regardless of when Pedro
is released, he will be released in Nebraska—not Arizona where the
children currently live. And, DCS will not be able to place the children with
Pedro in Nebraska until after officials assess whether the children may be




                                         3
                            PEDRO R. v. DCS, et al.
                             Decision of the Court
placed with Pedro pursuant to the Interstate Compact on the Placement of
Children, A.R.S. § 8-548 (2014), a process that could take up to six months.

¶6            Before being incarcerated, Pedro saw E.R. and M.R.
infrequently—just two to three times per month. The children never stayed
overnight with him at his apartment because he had roommates and he did
not want his roommates to be around them. During his incarceration, both
children were allowed to have telephone contact with Pedro, but both
children indicated to the case manager, throughout the dependency
proceedings, that they did not wish to have contact with him. Further, the
case manager reported that Pedro had “not maintained consistent contact
with the department.”

¶7            The children’s mother’s parental rights have also been
terminated. Thus, there is no other parent available to provide a normal
home life. Finally, the children are currently placed with their grandfather
and step-grandmother, and they are willing to adopt the children.

¶8             This evidence supports the juvenile court’s termination order,
and we will not reweigh the evidence received at the termination hearing
here. See Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 336, ¶ 14, 100 P.3d
943, 947 (App. 2004) (appellate court will not reweigh the evidence or
supersede the juvenile court’s assessment of the evidence for its own).
Accordingly, the juvenile court did not abuse its discretion in terminating
Pedro’s parental rights under A.R.S. § 8-533(B)(4).

II.    The Juvenile Court’s Findings Under ICWA

¶9             M.R. and E.R. are “Indian child[ren]” as defined by ICWA, 25
U.S.C.A. §§ 1901 to -1963 (West 2016). See 25 U.S.C.A. § 1903(4) (Indian child
is any unmarried person under the age of eighteen who is either a member
of an Indian tribe or eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe). Accordingly, ICWA applies
to this case. Under ICWA, the juvenile court must make two findings before
terminating parental rights. Valerie M., v. Dep’t of Econ. Sec., 219 Ariz. 331,
333, ¶ 3, 198 P.3d 1203, 1205 (2009).

¶10          First, the court must find “that active efforts have been made
to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.” Id. (quoting 25 U.S.C.A. § 1912(d)). Here, the juvenile court
found only that DCS “has made reasonable efforts to reunify the family.”
(Emphasis added). The court did not find that DCS made active efforts to
provide remedial services and rehabilitative programs to the family.


                                        4
                          PEDRO R. v. DCS, et al.
                           Decision of the Court
¶11            Second, there must be a “determination, supported by
evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage
to the child.” Valerie M., 219 Ariz. at 333, ¶ 3, 198 P.3d at 1205 (quoting 25
U.S.C.A. § 1912(f)); Ariz. R.P. Juv. Ct. 66(c) (requiring the same finding).
Here, the juvenile court did not make this finding.

¶12            DCS argues Pedro waived his right to challenge the
sufficiency of the juvenile court’s findings under ICWA because he did not
contest the findings in the juvenile court. When a party fails to object to
alleged error in the trial court, however, we can review for fundamental
error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601,
607-08 (2005) (fundamental error applies when a party fails to object to
alleged trial error; to establish fundamental error, a party must establish
both that error exists and that the error caused that party prejudice).
Although the doctrine of fundamental error is rarely used in civil cases, we
nonetheless review for fundamental error here because ICWA “mandates
certain procedural safeguards and substantive requirements for state court
proceedings.” Valerie M., 219 Ariz. at 334, ¶ 12, 198 P.3d at 1206; see Ruben
M., 230 Ariz. at 239, ¶ 15, 282 P.3d at 440 (fundamental error review
appropriate in appeal challenging juvenile court’s factual findings).

¶13             Here, a qualified expert testified, without objection, that DCS
has made active efforts to provide remedial services and rehabilitative
programs designed to prevent the breakup of the family. The expert also
testified that if the children remained in Pedro’s custody, they would likely
suffer serious emotional or physical damage. Pedro did not challenge the
expert’s testimony, or present evidence to the contrary, and there is no
contrary evidence in the record. Accordingly, Pedro cannot establish he was
prejudiced by the juvenile court’s failure to make the findings required by
ICWA.

                               CONCLUSION

¶14          For the foregoing reasons, we affirm the juvenile court’s order
terminating Pedro’s parental rights to E.R. and M.R.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA
                                        5
