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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             MARK T., Appellant,

                                        v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, F.W., A.T., L.T.,
                      Appellees.

                             No. 1 CA-JV 15-0385
                               FILED 5-26-2016


           Appeal from the Superior Court in Maricopa County
                             No. JD527035
                The Honorable Timothy J. Ryan, Judge

                                  AFFIRMED


                                   COUNSEL

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

Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee DCS
                          MARK T. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.


J O N E S, Judge:

¶1             Mark T. (Father) appeals the termination of his parental rights
to A.T., L.T., and F.R. (collectively, the Children), arguing the Department
of Child Safety (DCS) failed to prove: (1) the statutory grounds for
severance by clear and convincing evidence, and (2) that severance was in
the Children’s best interests by a preponderance of the evidence. For the
following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2             In January 2013, the Children’s mother (Mother), while
pregnant with F.R., obtained an order of protection prohibiting all contact
between Father and the older children following a domestic violence
incident. In May 2013, F.R. was born prematurely with serious stomach and
other medical issues and immediately placed in the neonatal intensive care
unit. In September 2013, the hospital was prepared to release F.R., but
Mother had not learned how to care for her and appeared under the
influence of drugs during her visits. The Children, then age four, two, and
four months, were taken into DCS custody because of concerns that Mother
was abusing methamphetamine and unable or unwilling to care for F.R.’s
special needs. The older children were placed with a maternal aunt, and
F.R. with a licensed foster family prepared to address her medical issues.2

1      We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).

2     F.R. had surgery shortly following her birth to remove portions of
her small intestine and colon. Over the course of the dependency, F.R.
remained “medically fragile,” under the care of a hematologist,
nephrologist, pulmonologist, cardiologist, dermatologist, gastrologist, and
speech pathologist to address sleep apnea, speech delays, digestive and



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                          MARK T. v. DCS, et al.
                          Decision of the Court

At the time, Father’s whereabouts were unknown, and he had never met
F.R. DCS immediately filed a dependency petition, alleging the Children
were dependent as to Father on the grounds of abandonment and neglect.3

¶3            Father was incarcerated in November 2013, and DCS was
eventually able to locate him and encourage him to engage in services
offered at the jail addressing parenting skills, substance abuse, and
domestic violence. Father contested the dependency but submitted the
issue to the juvenile court on the record. In April 2014, the court
adjudicated the Children dependent as to Father and confirmed a case plan
of family reunification concurrent with severance and adoption. That same
month, Father pled guilty to one count of theft of means of transportation,
a class three felony, and was sentenced in June 2014 to three and a half
years’ imprisonment with credit for two hundred days of presentence
incarceration.

¶4              Father completed numerous programs in prison, including
classes addressing parenting skills, substance abuse education and
prevention, anger management, public speaking, money management,
critical thinking skills, job training, and Spanish language. Father wrote
several letters to DCS, requested updates on the Children, and asked that
they visit him in prison. He also sent several letters and cards to the
Children. The Children’s therapist, maternal aunt, Court-Appointed
Special Advocate, and DCS case manager agreed a prison visit and/or
access to the letters would be disruptive and inappropriate. F.R. had never
met Father and was a medically fragile infant, and consistent with reports
from family members that Father “never had a substantial relationship with
any of the children” even prior to his incarceration, the older children had
little, if any, memory of Father. Therefore, no visits were scheduled, and
communications from Father were given to the Children’s placement
relative to keep for the future. Father remains incarcerated with an
anticipated release date between August 2016 and May 2017.

¶5          Because Mother refused to participate in services and Father
was unavailable to parent, in September 2014, the juvenile court ordered


feeding issues, and high blood pressure. By the time of trial in November
2015, F.R. was developmentally on target in all areas aside from feeding,
which was largely completed through a tube placed in her stomach.

3      The Children were adjudicated dependent as to Mother in December
2013 after she failed to appear at the contested hearing.



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                            MARK T. v. DCS, et al.
                            Decision of the Court

the case plan change to severance and adoption over Father’s objection.
DCS filed a motion to terminate the parent-child relationship alleging
severance was warranted as to Father as a result of his lengthy
incarceration. Mother’s parental rights were terminated in October 2014
when she failed to appear at trial.4 Father contested the allegations and
proceeded to trial in November 2015.

¶6             In addition to providing information regarding Father’s
incarceration, DCS presented evidence that the Children were adoptable
and in adoptive placements, and severance was in the Children’s best
interests because it would provide them the opportunity for permanency in
safe, stable homes. Father agreed the Children were in loving, stable, and
appropriate placements and it would not be in their best interests to visit
him in prison, but testified the Children need only wait for him to be
released from prison to achieve permanency and stability because “it would
only be right for them to be raised by a parent.”

¶7            After taking the matter under advisement, the juvenile court
found DCS had proven by clear and convincing evidence that termination
of Father’s parental rights was warranted because Father had been
convicted of a felony and would be incarcerated for a length of time that
would deprive the Children of a normal home for a period of years. See
Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(4).5 The court also found severance was
in the Children’s best interests and entered an order terminating Father’s
parental rights. Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1) and Arizona Rule of
Procedure for the Juvenile Court 103(A).

                                 DISCUSSION

I.     DCS Proved Severance Was Warranted by Clear and Convincing
       Evidence.

¶8             A parent’s rights may be terminated if the juvenile court finds
by clear and convincing evidence “[t]hat 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.” A.R.S. § 8-533(B)(4); Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz.


4      Mother does not challenge this order and is not a party to this appeal.

5     Absent material changes from the relevant date, we cite a statute’s
current version.


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                            MARK T. v. DCS, et al.
                            Decision of the Court

Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). Father argues DCS failed
to prove severance was warranted. We will affirm a termination order
“unless there is no reasonable evidence to support” the court’s factual
findings. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App.
1998) (citing Maricopa Cnty. Juv. Action No. JS-4374, 137 Ariz. 19, 21 (App.
1983), and Maricopa Cnty. Juv. Action No. JS-378, 21 Ariz. App. 202, 204
(1974)).

¶9            Father correctly notes there is no bright line rule as to when a
sentence is sufficiently long to deprive a child of a normal home for a period
of years. See Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 14 (App.
2014) (quoting Michael J., 196 Ariz. at 251, ¶ 29). A “normal home” is one in
which a parent has a presence. Maricopa Cnty. Juv. Action No. JS-5609, 149
Ariz. 573, 575 (App. 1986).

¶10           To determine whether the statutory ground is met, the
juvenile 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 at issue.

Michael J., 196 Ariz. at 251-52, ¶ 29. No one factor is determinative, and
“there is no threshold level . . . that either compels, or forbids, severance.”
Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 450, ¶ 15 (App. 2007).
Rather, “[i]t is an individualized, fact-specific inquiry.” Id. (citing Michael
J., 196 Ariz. at 251, ¶ 29).

¶11            The juvenile court made specific findings regarding the
Michael J. factors, noting the Children were very young when Father was
incarcerated — the oldest four years of age and the youngest only an infant
— and that the Children had no relationship with either parent. The court
noted Father was sentenced to three and a half years in June 2014 following
his conviction for theft of means of transportation, and found, with credit




                                        5
                           MARK T. v. DCS, et al.
                           Decision of the Court

for presentence incarceration and earned release,6 would be eligible for
release in May 2017. The court further found “Father’s past, present and
continuing incarceration has made the existence of a parent-child
relationship impossible,” noted Mother’s parental rights had already been
terminated, and concluded, “[i]n this vacuum,” that the Children’s
placements had supplanted the parents and met the Children’s needs.

¶12            Father does not challenge the juvenile court’s findings.
Instead, Father argues the order should be vacated because the facts are
analogous to those presented in Rocky J. In Rocky J., this Court affirmed an
order declining to sever a father’s parental rights where he would be
released seven months after the severance trial and there was evidence that
father’s incarceration “was not the sole cause of the lack of a relationship”
with the child. 234 Ariz. at 441-42, ¶¶ 15, 18, 23. Father likewise contends,
here, that he could be released in August 2016 — nine months after the
severance trial — that DCS interfered with his efforts to maintain a
relationship with the Children by withholding his cards and letters from
them and declining his requests for visitation in prison, and that the
Children were young enough that he would have many years to parent
after being released from prison before they reached majority. But, the
cases are not identical,7 and the existence of superficial similarities does not
compel reversal of the juvenile court’s order, particularly where, under the


6      Pursuant to A.R.S. § 41-1604.07(A), (D), a qualifying prisoner is
granted an earned release credit of one day for every six days served; the
remainder of the sentence is served in the community under supervision of
the probation department.

7      For example, in Rocky J., this Court found evidence that the parent-
child relationship could be built through telephone calls and letters during
the remaining few months of the father’s incarceration, and the child’s
guardian ad litem opposed severance because it would deprive child of the
opportunity of a relationship with the father — a decision she was too
immature to make at the time — and because her current placement was
having difficulty managing her behaviors. 234 Ariz. at 442, ¶¶ 19-21. In
contrast, here, there was an order of protection prohibiting contact between
Father and the Children at the time they were removed, the Children’s
attorney supported severance, the Children’s placements were meeting
their general and special needs, and the possibility of developing a
relationship through telephone calls and letters was remote in light of the
fact that there was no pre-existing relationship and the consensus that
contact from Father from prison would be damaging to the Children.


                                       6
                            MARK T. v. DCS, et al.
                            Decision of the Court

applicable legal standard, no one factor is determinative. See Christy C., 214
Ariz. at 450, ¶ 15.

¶13            Father presented evidence of his release date and testified
extensively regarding his repeated requests for visitation, ultimately
agreeing it is not in the Children’s best interests to visit him in prison. We
presume the juvenile court considered this information, as well as the other
relevant factors, and we will not second-guess the weight the court
ultimately assigned to those circumstances so long as they are supported
by the evidence. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282,
¶ 12 (App. 2002) (citations omitted). Here, reasonable evidence supports
the court’s findings, and the findings are sufficient to support the
conclusion that DCS presented clear and convincing evidence that
severance was warranted based upon the length of Father’s incarceration.
Indeed, Father’s incarceration and resulting inability to parent the Children
had already deprived them of a normal home for two years at the time of
trial, and his sentence had yet to be completed. And even before his
incarceration, Father had not seen, spoken to, or provided for the Children
in ten months.

¶14          As in Rocky J., we defer to the juvenile court’s superior
opportunity to “‘weigh the evidence, judge the credibility of the parties,
observe the parties, and make appropriate factual findings,’” 234 Ariz. at
440, ¶ 12 (quoting Pima Cnty. Dependency Action No. 93511, 154 Ariz. 543,
546 (App. 1987)), and we find no error.

II.    DCS Proved Severance Was in the Children’s Best Interests by a
       Preponderance of the Evidence.

¶15            A finding of a statutory ground for severance under A.R.S.
§ 8-533 does not, standing alone, justify termination of parental rights; it
must also be proved by a preponderance of the evidence that termination
of the parent-child relationship is in the child’s best interests. See Ariz. R.P.
Juv. Ct. 66(C); Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004) (citing Michael J., 196 Ariz. at 249, ¶ 12). To establish best
interests, it must be shown the child “would derive an affirmative benefit
from termination or incur a detriment by continuing in the relationship.”
Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). In
evaluating whether severance would benefit a child by providing an
opportunity for permanency, the court considers whether there is a current
plan for the child’s adoption and whether the current placement is meeting
the child’s needs. See Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345,
350, ¶ 23 (App. 2013) (citations omitted). We review the propriety of a best


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                          MARK T. v. DCS, et al.
                          Decision of the Court

interests finding for an abuse of discretion. Orezza v. Ramirez, 19 Ariz. App.
405, 409 (1973) (citing Dunbar v. Dunbar, 102 Ariz. 352, 354 (1967)).

¶16             Father argues DCS failed to prove termination was in the
Children’s best interests because he presented evidence he would be willing
and able to care for them upon his release. Even assuming this to be the
case, the record reflects the Children had already been in out-of-home care
for over two years. They are happy and successful with their respective
placements, and the placements are willing to adopt the Children, provide
a safe, stable environment that meets the Children’s basic and special needs
and will facilitate an ongoing relationship between them. Severing Father’s
parental rights would free the Children for adoption and further the goal of
permanency in a normal home — an environment Father has not provided
the Children “for a period of years.” See A.R.S. § 8-533(B)(4).

¶17          Reasonable evidence supports the juvenile court’s conclusion
that severance was in the Children’s best interests, and we find no abuse of
discretion.

                              CONCLUSION

¶18           The juvenile court’s order terminating Father’s parental rights
to the Children is affirmed.




                                  :ama




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