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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           THOMAS A., Appellant,

                                        v.

                   SAMANTHA A., A.A., A.A., Appellees.

                             No. 1 CA-JV 16-0318
                               FILED 5-11-2017


         Appeal from the Superior Court in Maricopa County
                             No. JS18087
       The Honorable Christine E. Mulleneaux, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Thomas A., Kingman
Appellant

Samantha A., Peoria
Appellee
                    THOMAS A. v. SAMANTHA A., et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.



B E E N E, Judge:

¶1            Thomas A. (“Father”) appeals an order terminating his
parental rights. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Father is the biological parent of A.N.A. and A.S.A.
(“Children”). In 2011, Father was arrested on numerous charges of sexual
exploitation of a minor. Father and Samantha A. (“Mother”) were divorced
on July 25, 2011, and Mother obtained sole legal custody of the Children.
Pursuant to two plea agreements, Father was convicted of five counts of
attempted sexual exploitation of a minor. Father was sentenced to
consecutive aggravated prison terms of 13 and 14 years on two counts, and
lifetime probation, including a prohibition of contact with the Children, on
the three remaining counts.

¶3            In July 2015, Mother filed a petition to terminate Father’s
parental rights 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.1 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
incarceration for 27 years was a valid basis for termination, and found by a


1      We address only the ground found by the superior court. See Kent
K. v. Bobby M., 210 Ariz. 279, 282, ¶ 9 (2005) (only one statutory ground
necessary to satisfy § 8-533).

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




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                      THOMAS A. v. SAMANTHA A., et al.
                           Decision of the Court

preponderance of the evidence that it was in the Children’s best interests to
terminate Father’s parental rights. Father timely appealed the termination
of his parental rights.3 We have jurisdiction pursuant to A.R.S. §§ 12–
120.21(A)(1) (2017) and 8–235(A) (2017).

                                 DISCUSSION

¶5             The fundamental right to parent one’s child is not absolute.
Kent K. at 284, ¶ 24. The superior court may terminate parental rights if it
finds, “by clear and convincing evidence, at least one of the statutory
grounds set out in section 8–533, and also that termination is in the best
interest of the child.” Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248–
49, ¶ 12 (2000). We review an order terminating parental rights for an abuse
of discretion and will not reverse unless “there is no reasonable evidence to
support” the order. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004).

¶6            Father’s parental rights were terminated pursuant to A.R.S. §
8-533(B)(4) because his term of imprisonment was such that the Children
would be deprived of a normal home for a period of years. There is no
“bright line” defining how long a sentence must be to deprive a child of a
normal home for a “period of years,” and each case must be determined
based on its “particular facts.” Michael J., 196 Ariz. at 251, ¶ 29. The superior
court must look to 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 at issue.

Id. at 251-52 ¶ 29.

¶7            Father pleaded guilty to five counts of attempted sexual
exploitation of a child, and was sentenced to 27 years in prison. During his
incarceration, Mother asked that he be barred from corresponding with the


3     At Father’s request, the superior court granted an extension of the
deadline to file an appeal, and he did so within the designated time.


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                   THOMAS A. v. SAMANTHA A., et al.
                        Decision of the Court

Children pursuant to A.R.S. § 13-4411.01. Additionally, Father was placed
on lifetime probation.

¶8            The superior court made specific findings on each Michael J.
factor. The superior court found that Father has had no contact with the
Children for more than four years, and is prohibited from contacting them
during his prison term. The superior court also found that Father’s sentence
had already deprived the Children of a normal home, notwithstanding that
in his absence, Mother continued to provide appropriately for the Children.
We defer to a trial court’s findings because it is “in the best position to
weigh the evidence, judge the credibility of the parties, observe the parties,
and make appropriate factual findings.” In re Pima Cty. Dependency Action
No. 93511, 154 Ariz. 543, 546 (App. 1987). 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).

¶9             The superior court also determined by a preponderance of the
evidence that termination of Father’s parental rights were in the Children’s
best interests. “[I]n a private proceeding to sever parental rights, just as in
state-initiated proceedings, a juvenile court may conclude that a proposed
adoption benefits the child and supports a finding that severance is in the
child’s best interests.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2, ¶ 1 (2016).
In considering a child’s best interests, the court is tasked with balancing
“the unfit parent’s diluted interest against the independent and often
adverse interests of the child in a safe and stable home life.” Id. at 4, ¶ 15
(internal quotations omitted).

¶10            The superior court found that termination of Father’s parental
rights would benefit the Children by making them available for adoption
by Mother’s significant other, who had a history of caring for the Children
and expressed his intent to marry Mother and adopt the Children. The
superior court made its finding based on evidence that the Children’s
presumptive adoptive father had “been there to care for the children’s
social, education, and emotional needs,” and that they would benefit from
having a “father who is there for them on a daily basis instead of an absent
and incarcerated parent who abused them.” The superior court also found
that failure to grant termination would harm the Children because Father
still believed, at the time of the hearing, that it was the justice system, not
his criminal actions, which harmed the Children. We conclude that
sufficient evidence supports the superior court’s finding that termination of
Father’s parental rights is in the Children’s best interests.




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                 THOMAS A. v. SAMANTHA A., et al.
                      Decision of the Court

                            CONCLUSION

¶11          For the foregoing reasons, we affirm the order terminating
Father’s parental rights.




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




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