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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               ASHLYN H., Appellant,

                                           v.

             DEPARTMENT OF CHILD SAFETY,1 A.O., Appellees.

                                No. 1 CA-JV 14-0254
                                  FILED 3-5-2015


              Appeal from the Superior Court in Maricopa County
                                No. JD23026
                     The Honorable Linda H. Miles, Judge

                                     AFFIRMED


                                      COUNSEL

David W. Bell Attorney at Law, Phoenix
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee




1       Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety (DCS) is substituted for the
Arizona Department of Economic Security (ADES) in this matter. See
ARCAP 27. For consistency, we refer to DCS in this decision even where,
at the time, actions were taken by ADES.
Law Office of Alicia Montoya-Sanchez
By Alicia Montoya-Sanchez
Guardian Ad Litem for Child



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.


J O N E S, Judge:

¶1             Ashlyn H. (Mother) appeals from the trial court’s order
terminating her parental rights to A.O. (Child) on the statutory ground of
incarceration for a felony conviction that is “of such length that [Child] will
be deprived of a normal home for a period of years.” Ariz. Rev. Stat.
(A.R.S.) § 8-533(B)(4).2 For the following reasons, we affirm.

                FACTS3 AND PROCEDURAL HISTORY

¶2            Mother is the biological parent of Child, born August 18, 2010.
At the time of Child’s birth, Mother had outstanding felony arrest warrants,
and for the next five months, consciously evaded arrest while Child was in
her care. On January 25, 2011, after a brief chase and mild stand-off,
Glendale police officers apprehended and arrested Mother. Before her
arrest, Mother arranged for Child’s Father and paternal grandmother to
pick up Child. DCS left Child in Father’s care at that time.

¶3           Mother was initially incarcerated at the Maricopa County Jail.
In March 2011, Mother pleaded guilty to one count of theft of a means of
transportation, and was sentenced, in April 2011, to 6.5 years’
imprisonment. She was transferred to the Arizona Department of
Corrections (DOC) to serve the remainder of her sentence.


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

3       We view the facts in the light most favorable to upholding the
termination order. Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 449,
¶ 12, 153 P.3d 1074, 1078 (App. 2007) (citing Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002)).


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                           ASHLYN H. v. DCS
                           Decision of the Court

¶4           While in jail, Mother had weekly phone contact with Child,
and Father brought Child to visit her. Once Mother was transferred to
DOC, visits ceased because no one was available to transport Child, but
Mother maintained phone contact with Child while she was in Father’s
care.

¶5            Child was removed from Father’s care, however, in December
2012. After voluntarily agreeing to participate in a rule-out drug screening
in September 2012 as part of an investigation regarding two children from
another relationship, Father instead fled with Child. DCS was unable to
locate Father until December 19, when he was arrested at paternal
grandmother’s residence on an outstanding warrant. Child was ultimately
placed with a paternal cousin six days later. Thereafter, Child was found
dependent as to Mother and Father, and the case plan was set as family
reunification concurrent with severance and adoption.

¶6              As part of the dependency, Mother was asked to “participate
in any classes offered in prison that will help her parent appropriately and
live a sober life when released.” Mother followed DCS’s direction, earning
certificates of completion for Graphic Arts from Rio Salado College,
completing prison programs on cultural diversity and cognitive
restructuring, and participating in a Life-Changing Class, which focused on
re-entry into society, domestic violence, and parenting skills. Mother also
maintained employment while incarcerated.

¶7           Mother was not, however, offered visitation with Child in
prison because of Child’s young age, as well as the recommendation of Dr.
DiBacco, a psychologist, that visits could be damaging to Child and cause
her to regress.4 Mother agreed with the recommendation and instead
maintained contact with Child by sending numerous letters and cards, each
of which was provided to Child.

¶8             In August 2013, prompted by Father’s continued failure to
comply with services, the trial court granted DCS’s motion to change the
case plan to severance and adoption. Shortly thereafter, in September 2013,
DCS moved to terminate Mother and Father’s parental rights. After a one-
day trial in July 2014, the court determined DCS had proven by clear and


4     Dr. DiBacco’s recommendation was based in part upon Child’s
adverse behavioral reactions to prior visits with Father, with whom she had
a more established relationship.




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                             ASHLYN H. v. DCS
                             Decision of the Court

convincing evidence that Mother’s felony conviction would deprive Child
of a stable home for a period of years, and proven by a preponderance of
the evidence severance would be in Child’s best interest. Accordingly, it
terminated Mother’s parental rights to Child.5 Mother timely appealed. We
have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21, and 12-
2101(A)(1).

                                 DISCUSSION

¶9             To terminate a parent-child relationship, the trial court must
find that clear and convincing evidence supports one of the statutory
grounds for severance. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d
1013, 1018 (2005); A.R.S. § 8-533(B). Additionally, the court must determine
by a preponderance of the evidence that termination of the relationship is
in the child’s best interests. Kent K., 210 Ariz. at 284, ¶ 22, 110 P.3d at 1018.
We review a trial court’s termination order for an abuse of discretion. Mary
Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App.
2004) (citing Maricopa Cnty. Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925
P.2d 748, 750 (App. 1996)). We will therefore accept the court’s findings of
fact unless no reasonable evidence supports them. Jesus M., 203 Ariz. at 280,
¶ 4, 53 P.3d at 205.

¶10           A parent’s rights may be terminated if that “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). There is “no ‘bright line’
definition of when a sentence is sufficiently long to deprive a child of a
normal home for a period of years.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 251, ¶ 29, 995 P.2d 682, 687 (2000). Rather, the inquiry is
individualized and fact-specific, and requires the court to consider “all
relevant factors,” which include, but are not limited to:

       (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



5     Father’s parental rights to Child were also terminated. He did not
appeal the severance order, and is not a party to this case.


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                             ASHLYN H. v. DCS
                             Decision of the Court

       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, 995 P.2d at 687-88. The trial court here stated it had
considered the above-referenced factors, and concluded they collectively
weighed in favor of terminating Mother’s parental rights.

¶11            The sole argument made by Mother on appeal is that
insufficient evidence supports the second Michael J. factor — “the degree to
which the parent-child relationship can be continued and nurtured during
the incarceration.” While acknowledging that not every factor need be
affirmatively found to justify severance, Christy C., 214 Ariz. at 450, ¶ 15,
153 P.3d at 1079, Mother argues that the trial court erred by relying upon
an erroneous finding to support its termination of Mother’s parental rights.
Mother’s argument focuses on DCS’s failure to provide her visitation in
prison. She claims that if DCS had provided visitation, her relationship
with Child could have been nurtured during her incarceration.

¶12            Mother’s argument, however, ignores her own testimony. At
the severance hearing, Mother stated that she agreed with DCS’s decision
not to provide visitation in prison with Child based upon “what the
therapist, the doctor, said about that it was going to throw her into
transgression and . . . cause her behavioral problems again.” Following
mediation regarding the dependency petition, DCS submitted “ASFA
Findings RE: Reasonable Efforts to Finalize the Permanency Plan,” which
requested Mother receive only services available to her while in custody,
and did not request visitation. The trial court adopted DCS’s ASFA
findings, specifically noting that no objection had been lodged against
them. Further, at subsequent report and review hearings, the court found,
again without any objections from Mother, that DCS had made reasonable
efforts to finalize the permanency plan for Child. Therefore, the record
demonstrates Mother made a conscious decision not to subject Child to
visitation in prison. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231,
235 n.8, ¶ 15, 256 P.3d 628, 632 n.8 (App. 2011) (indicating a parent may
waive argument that DCS failed to provide adequate services when the
parent does not request additional services or otherwise object to the
manner court-ordered services are provided). Accordingly, we find no
error.

¶13            Notwithstanding Mother’s agreement regarding services, the
trial court’s finding is supported by other reasonable evidence that the
parent-child relationship could not be nurtured during Mother’s
incarceration. Mother cared for Child only for the first five months of her


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                            ASHLYN H. v. DCS
                            Decision of the Court

life. Once incarcerated in January 2011, Mother had some in-person visits
with Child, and maintained weekly phone contact until December 2012.
Throughout her incarceration, Mother also sent gifts, letters, and cards to
Child. See Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 442, ¶ 19, 323
P.3d 720, 725 (App. 2014) (acknowledging that, under some circumstances,
a court could reasonably find that a parent-child relationship could be built
through telephone calls and letters while the parent awaited release from
incarceration). Despite these contacts, the DCS case manager testified that
Child was unaware of who Mother was, and did not view her as her
mother. Given this lack of relationship, the DCS case manager testified that
introducing Child to Mother in prison during limited visits would not
create a bond between them.

¶14             Moreover, even assuming the second factor weighed in
Mother’s favor, the evidence presented at trial provided a reasonable basis
for the trial court to conclude the remaining factors, which Mother does not
contest on appeal, weighed in favor of termination. See Christy C., 214 Ariz.
at 450, ¶ 15, 153 P.3d at 1079 (“[T]here is no threshold level under each
individual factor in Michael J. that either compels, or forbids, severance.”).
Mother and Child did not have a strong relationship at the outset of
Mother’s incarceration, as Mother only cared for Child from birth to five
months and was actively evading arrest at that time. By the time of trial,
Child was almost four years old and residing with a relative placement.
Mother conceded her 6.5 year sentence deprived her of her civil liberties for
an extended period of time, including the vast majority of Child’s life. And,
as noted above, see infra ¶ 8 n.6, Father’s rights were also terminated,
leaving no other biological parent available to provide a normal home for
Child. See Maricopa Cnty. Juv. Action No. JS-5609, 149 Ariz. 573, 575, 720 P.2d
548, 550 (App. 1986) (noting “normal home” refers to the parent’s own
obligation to provide a normal home in which he maintains a presence).
Finally, Mother’s incarceration has allowed Child to grow especially close
to her relative placement, whom she now views as her family.

¶15          Mother has made commendable efforts to comply with DCS’s
request that she participate in classes while in prison and communicate
with Child. However, because reasonable evidence supported the trial
court’s determination that Mother’s sentence would deprive Child of a




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                             ASHLYN H. v. DCS
                             Decision of the Court

normal home for a period of years, the trial court did not abuse its discretion
in terminating Mother’s parental rights on this statutory ground.6

                                CONCLUSION

¶16          Based upon the foregoing, we affirm the trial court’s
termination order.




                                     :ama




6       Mother does not challenge the trial court’s finding that severance
would be in Child’s best interests. Therefore, we do not address it. Michael
J., 196 Ariz. at 249, ¶ 13, 995 P.2d at 686 (accepting trial court’s best interest
finding where parent failed to challenge it on appeal).


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