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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              JESSICA S., Appellant,

                                         v.

                  DEPARTMENT OF CHILD SAFETY, T.F.,
                             Appellees.

                              No. 1 CA-JV 17-0139
                                FILED 11-16-2017


            Appeal from the Superior Court in Mohave County
                         No. L8015JD201607007
           The Honorable Douglas Camacho, Judge Pro Tempore

                                   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, Department of Child Safety
                          JESSICA S. v. DCS, T.F.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Margaret H. Downie (retired)
joined.


B R O W N, Judge:

¶1             Jessica S. ("Mother") appeals the termination of her parental
rights to her child, T.F., who was born in 2013. For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             In June 2012, prior to their marriage, Mother and Father were
charged with several drug-related offenses. A few weeks later, Mother
posted bond, married Father, and conceived the child.1 In September 2013,
less than four months after the child's birth, Mother pled guilty to
possession of dangerous drugs for sale (methamphetamine), a class 2
felony, and was taken into custody. In October, she was sentenced to prison
for five years.

¶3              Over the next two years, the child alternated between living
with Father and paternal grandmother ("Grandmother"), with
Grandmother being the primary caretaker. In February 2016, Father was
arrested and the Department of Child Safety ("DCS") took custody of the
child, placing him with Grandmother. DCS then filed a petition alleging
the child was dependent as to both parents, which the superior court
granted. While incarcerated, Mother completed a parenting course, wrote
letters to the child, and had brief conversations with him by phone.

¶4           In August 2016, DCS filed a motion to terminate Mother's
parental rights based on the length of her imprisonment pursuant to
Arizona Revised Statutes ("A.R.S.") section 8-533(B)(4). Following a
contested hearing in January 2017, the superior court granted the motion,
finding that DCS proved the statutory ground by clear and convincing



1      The superior court also terminated Father's parental rights but he is
not a party to this appeal.


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                            JESSICA S. v. DCS, T.F.
                             Decision of the Court

evidence and that termination was in the child's best interests. This timely
appeal followed.

                                 DISCUSSION

¶5             To terminate parental rights, the superior court must find by
clear and convincing evidence the existence of at least one of the statutory
grounds for termination enumerated in A.R.S. § 8-533(B), and must also
find by a preponderance of the evidence that termination is in the child's
best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep't of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). We view the evidence and reasonable
inferences in the light most favorable to sustaining the superior court's
termination order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009). We will affirm the court's order if it is supported by reasonable
evidence. Id.

¶6            Mother argues the superior court erred by terminating her
parental rights under A.R.S. § 8-533(B)(4) because the length of her prison
sentence will not deprive the child of a normal home for a period of years.
To establish the statutory ground relating to length of sentence, DCS was
required to prove by clear and convincing evidence that Mother (1) has
been deprived of her civil liberties due to a felony conviction and (2) the
length of her sentence will deprive the child of a normal home for a period
of years. A.R.S. § 8-533(B)(4).

¶7             The length of a parent's sentence, alone is not dispositive,
Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 281, ¶ 9 (App. 2002), and
the superior court must engage in a fact-intensive analysis of 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.

¶8           Although specific findings addressing the Michael J. factors
were not included in the termination order, the court addressed them on


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                           JESSICA S. v. DCS, T.F.
                            Decision of the Court

the record at the conclusion of the hearing. First, the child was less than
four months old when Mother was incarcerated for her conviction of
possession of dangerous drugs for sale. Noting that there are "huge
developmental reasons why a child would need to be with a parent," the
court explained that the child "does not remember anything about whatever
relationship may have existed" before Mother's incarceration. Second, the
court found that if the child were older, then letters and phone calls would
be more meaningful to him. Third, the child has essentially been deprived
of a normal home throughout his entire life, with Grandmother having
provided the bulk of parental responsibilities. Fourth, Mother was
sentenced to five years' imprisonment with the possibility of early release
as soon as June 2017, but nothing presented to the court at the termination
hearing indicated that Mother would in fact be approved for early release.
Fifth, while Father was available to provide a normal home life, he
essentially failed to do so. Sixth, the court found that deprivation of a
parental presence did not have much of an impact on the child because of
Mother's limited involvement in his life.

¶9             The superior court's findings are supported by the record, and
Mother does not contend otherwise. Instead, she argues that DCS
interfered with her efforts to maintain an existing relationship with the
child because she was denied in-person visitation, relying on Michael M. v.
Ariz. Dep't of Econ. Sec., 202 Ariz. 198, 200, ¶ 8 (App. 2002). In that case, a
newborn child was adjudicated dependent when the father was held in jail
for an alleged crime. Id. at 198, ¶¶ 1, 2. During his incarceration, the father
promptly requested visitation with the child, whom he had never seen. Id.
at ¶¶ 1, 3. The superior court denied father's multiple requests to see the
child. Id. at 198-200, ¶¶ 3-7. On appeal, this court reversed, finding there
was no evidence supporting the superior court's "belief" that visitation was
not in the child's best interests, especially when the grandparents were
willing to transport the child to the jail. Id. at 201, ¶ 11.

¶10            Here, DCS acknowledged at the termination hearing that
Mother requested visitation, but as explained by the case worker, the
request was denied because DCS did not believe “it was appropriate for a
child of that age." Mother has not directed us to any conflicting evidence.
And, unlike the father in Michael M., who promptly and actively requested
visitation with his newborn child, Mother did not ask the court to order
visitation until November 2016—approximately three months after DCS
moved to terminate her parental rights. Further, the father in Michael M.
was in jail pending charges whereas in this case Mother was convicted and
serving her sentence. Based on these facts, Mother has not shown how the
court abused its discretion in not granting her request for visitation.


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                           JESSICA S. v. DCS, T.F.
                            Decision of the Court

¶11           Mother also argues termination was improper because her
early release date was five months from the date of the severance
adjudication and therefore the child would not be deprived of a normal
home for a period of years, citing Ariz. Dep't of Econ. Sec. v. Rocky J., 234
Ariz. 437 (App. 2014). In that case, DCS's predecessor, the Arizona
Department of Economic Security ("ADES"), appealed the superior court's
decision denying ADES's request to sever the father's parental rights based
on the length of his incarceration. Id. at 438, ¶ 1. Affirming the superior
court's ruling, this court noted that the father was scheduled to be released
early from confinement, which was seven months from the date of the
severance trial, and that an anticipated release date is one factor a court
should consider in determining whether termination is proper. Id. at 440-
41, ¶¶ 14-16.

¶12           Rocky J. is not controlling here. As the superior court
explained, Mother has not been approved for early release. Second, Rocky
J. does not mandate that termination is improper if the parent's release date
is quickly approaching. An anticipated release date is only one of the
relevant factors a court considers in light of the unique facts present in each
individual case. Here, the superior court did not abuse its discretion when
it terminated Mother's parental rights despite the possibility of Mother's
early release. Jeffrey P. v. Dep't of Child Safety, 239 Ariz. 212, 214, ¶ 8 (App.
2016) ("No authority requires the court to presume an early release.").

¶13           Mother also argues that the superior court erred when it
found that termination was in the child's best interests. To establish
termination of parental rights would be in a child's best interests, the court
must find that the child will "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 making that
determination, the juvenile court may consider evidence that the child is
adoptable or that an existing placement is meeting the needs of the child."
Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011).
Here, the court found termination was in the child's best interests because
he is adoptable and termination would further the plan of adoption, which
would provide the child with permanency and stability.

¶14            Mother argues the child will not be harmed if her parental
rights are kept intact because she desires to have the child in her life and
has made, and will continue to make, lifestyle changes. We acknowledge
the positive changes Mother has made, but that does not affect the posture
of this case. The child is adoptable and termination would further the plan
of adoption. Grandmother, who has primarily cared for and bonded with


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                          JESSICA S. v. DCS, T.F.
                           Decision of the Court

him over the last several years, is willing to adopt. Thus, the court did not
err in finding termination is in the child's best interests.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm the order terminating
Mother's parental rights.




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




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