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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             ELIJAH H., Appellant,

                                        v.

        DEPARTMENT OF CHILD SAFETY, E.H., E.H., Appellees.

                             No. 1 CA-JV 16-0477
                                FILED 5-16-17


           Appeal from the Superior Court in Maricopa County
                             No. JD28968
                The Honorable John R. Ditsworth, 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
                         ELIJAH H. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.


B E E N E, Judge:

¶1            Elijah H. (“Father”) appeals the superior court’s termination
of his parental rights. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Father is the biological parent of Elijah H. and Elaijah H.
(“Children”). In August 2014, the Department of Child Services (“DCS”)
filed a dependency petition alleging Father was unable to care for Children
and had committed multiple acts of domestic violence against Mother.1
After a hearing, Children were adjudicated dependent.

¶3             Father was arrested in August 2015, for possession of a
firearm and possession of marijuana for sale and was sentenced to a four–
and–a–half year term of imprisonment. DCS then moved to terminate
Father’s parental rights to Children on several grounds, including the
length of incarceration for a felony conviction that would deprive the
Children of a normal home for a period of years. Ariz. Rev. Stat. (“A.R.S.”)
§ 8-533(B)(4) (2017).2

¶4             After a contested termination hearing, the superior court
found by clear and convincing evidence that Father’s conviction and
imprisonment for four-and-a-half years was a valid basis for termination,
and found by a preponderance of the evidence that it was in Children’s best
interests to terminate Father’s parental rights. Father timely appealed. We
have jurisdiction pursuant to A.R.S. §§ 12–120.21 (2017) and 12–2101 (2017).



1       Mother’s parental rights were also terminated, but she is not a party
to this appeal.

2     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                     2
                            ELIJAH H. v. DCS, et al.
                             Decision of the Court

                                 DISCUSSION

¶5             Custody of one’s children is a fundamental, but not absolute,
right. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000).
The superior court may terminate a parent’s rights upon clear and
convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B),
and upon finding by a preponderance of the evidence that termination is in
the best interests of the child.3 Michael J., 196 Ariz. at 248-49, ¶ 12. We
review the superior court’s termination order for an abuse of discretion; we
will affirm the order unless its factual findings are clearly erroneous, “that
is, unless there is no reasonable evidence to support them.” Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998).

¶6             “Parental rights may be severed ‘if the sentence of such parent
is of such length that the child will be deprived of a normal home for a
period of years.’” Michael J., 196 Ariz. at 251, ¶ 28 (quoting A.R.S. § 8–
533(B)(4)). There is no term of imprisonment that will per se sever parental
rights. Id. at 251, ¶ 29. That is, “a 20–year sentence might not provide
sufficient basis for severing an incarcerated parent’s rights, while in another
case a 3–year sentence could provide the needed basis.” Id.

¶7             When terminating parental rights on length of incarceration
grounds, pursuant to A.R.S. § 8–533(B)(4), the superior court should
consider all relevant factors, inter alia:

       (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. After
       considering those and other relevant factors, the trial court
       can determine whether the sentence is of such a length as to
       deprive a child of a normal home for a period of years.

Id. at 251–52, ¶ 29.



3      Father does not challenge the best-interests finding, and we therefore
do not address it.


                                         3
                          ELIJAH H. v. DCS, et al.
                           Decision of the Court

¶8             Father argues that the superior court erred by terminating his
parental rights because the evidence does not support termination. The
superior court heard conflicting testimony from DCS and Father. When
there is conflicting evidence, the superior court may make a finding
provided there is substantial evidence to support it. Imperial Litho/Graphics
v. M.J. Enters., 152 Ariz. 68, 77 (App. 1986). The superior court is in the best
position to weigh the evidence and assess witness credibility, and we will
affirm a severance order unless it is clearly erroneous. See Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶9             Here, the superior court thoroughly weighed the testimony
and evidence presented during the hearing and determined that the
statutory grounds for termination were present. Addressing the non–
exclusive factors set forth by the Arizona Supreme Court in Michael J., the
superior court determined that the youngest child, 15–months-old when
Father was sentenced to prison, “did not have a meaningful relationship
with her [F]ather” and “should not even remember” him. As to the oldest
child, who was two–and–a–half years old at the time of Father’s
incarceration, the superior court found that the child “could remember the
domestic violence that occurred in the home” and the relationship was
unhealthy and “filled with turmoil.” The superior court also found, by clear
and convincing evidence, that Father would be unable to maintain any
future bond with Children while incarcerated. Moreover, the superior
court found that “there is no other parent [to provide a normal life for
Children] as the [M]other is being severed in this matter.” The superior
court also found that Father’s four–and–a–half year incarceration would
cause Children to languish in state care and deprive “them of permanency
and stability for a period of years.” We find no error in the superior court’s
finding that clear and convincing evidence demonstrates a valid basis for
termination under § 8-533(B)(4).




                                       4
                       ELIJAH H. v. DCS, et al.
                        Decision of the Court

                           CONCLUSION

¶10          For the foregoing reasons, we affirm the superior court’s
termination of Father’s parental rights.




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

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