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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                         MICHAEL M., SR., Appellant,

                                         v.

           DEPARTMENT OF CHILD SAFETY, M.M., Appellees.

                              No. 1 CA-JV 15-0224
                                FILED 2-16-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD23937
               The Honorable Bradley H. Astrowsky, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
                     MICHAEL M., SR. v. DCS, M.M.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kenton D. Jones and Judge Samuel A. Thumma joined.


S W A N N, Judge:

¶1            Michael M. (“Father”) appeals the juvenile court’s order
severing his parental rights to his minor child, M.M. (“Child”). He disputes
the court’s finding that severance was in the best interests of Child and
contends that the court was improperly influenced by his tattoo, in
violation of his First Amendment rights. For the following reasons, we
affirm the juvenile court’s severance order.

                FACTS AND PROCEDURAL HISTORY

¶2            Child was born substance-exposed to methamphetamine,
amphetamine and THC on June 28, 2013. The Arizona Department of
Economic Security (“the Department”)1 removed Child, alleging that Child
was dependent because of Father’s history of substance abuse. Child is an
“Indian child” as defined under the Indian Child Welfare Act (“ICWA”)
because both parents are members of the Gila River Indian Community
(“the Community”). See 25 U.S.C. § 1903(4). The Community intervened
in the action and provided an ICWA caseworker in addition to the
Department caseworker. The juvenile court found Child dependent as to
both parents,2 and the Department implemented concurrent case plans of
family reunification and severance and adoption. Because of Father’s
history of substance abuse and criminal behavior, the Department referred
him for drug testing, substance-abuse treatment, and counseling to begin


1      Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
For convenience, in the text of our decision we refer to both the Department
of Child Safety and the Arizona Department of Economic Security as “the
Department.”

2      Child’s biological mother also had her parental rights severed in the
same order as Father. She did not contest the severance, and she is not a
party to this appeal.

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                       MICHAEL M., SR. v. DCS, M.M.
                           Decision of the Court
when he became sober, but he did not participate in any services and
sporadically visited Child.

¶3            In October 2013, Father assaulted a family member with a
machete. He pled guilty to aggravated assault and was sentenced to five
years in prison. While in prison, Father married a woman (“Stepmother”)
with whom he had been living before Child was born. Though Stepmother
brought Child to visit Father in prison, his visitation privileges were
suspended for several months because of disciplinary infractions during his
incarceration. In June 2014, over Father’s objection, the court changed the
case plan to severance and adoption. The Department then filed a motion
for severance in July 2014, alleging that Father’s civil liberties had been
suspended as a result of a felony conviction and his incarceration for a
period of years would deprive Child of a normal home, pursuant to A.R.S.
§ 8-533(B)(4). Father contested the motion to sever parental rights.

¶4           Initially, Child had been placed with a maternal relative, but
after concerns arose regarding that placement, he was placed with
Stepmother as a temporary placement in January 2015. The caseworkers
reported that Child appeared “happy and comfortable” in his placement
with Stepmother and was “doing extremely well.” Because of her marriage
to Father, a member of the Community, Stepmother was an ICWA-
compliant placement. If Father lost his parental rights, however,
Stepmother would no longer be an ICWA-compliant placement.

¶5             During the severance hearing, the Department caseworker
testified that Father had not participated in services. He opined that 4.5 to
5 years of incarceration was a significant time to be deprived of a parent
and a normal home. He also testified that Child was adoptable and the
Community had already identified an ICWA-compliant potential adoptive
placement. The Community caseworker testified that the services provided
fulfilled the ICWA requirements, and Child would suffer serious emotional
or physical damage if he remained with Father.3 While caseworkers from
both the Department and the Community acknowledged that Stepmother
had provided excellent care for Child, they expressed concern that

3      When an Indian child is involved, the ICWA requires the court make
two additional findings: (1) that “active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved
unsuccessful,” 25 U.S.C. § 1912(d), and (2) that, beyond a reasonable doubt,
“continued custody of the child by the parent . . . is likely to result in serious
emotional or physical damage to the child,” 25 U.S.C. § 1912(f). See Valerie
M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 333, ¶ 3 (2009).

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                       MICHAEL M., SR. v. DCS, M.M.
                           Decision of the Court
Stepmother would allow Father to return to the home without making
behavioral changes.

¶6            Though incarcerated, Father attended the severance hearing.
At the hearing, the court mentioned a tattoo on Father’s neck, which read
“fuck you officer,” and asked Father if he believed it set a good example for
his son. The findings of fact in the severance order stated that “Father has
a tattoo on his neck that reads: ‘FUCK YOU OFFICER,’” though that fact
was not used to support any conclusions of law in the order. The court
additionally found that Father did not have a relationship with Child before
incarceration; it would be difficult for Father in prison to create a
relationship with Child; and Child would be in kindergarten before Father
would be out of prison, a significant amount of time without Father at
home.

¶7            The court concluded that the Department had proved the
statutory ground for termination by clear and convincing evidence and the
ICWA requirements beyond a reasonable doubt. Based on the testimony
that there was an ICWA placement ready to adopt, Child was adoptable,
and a continuing relationship with Father would be harmful, the court
found by a preponderance of evidence that severance was in the best
interests of Child and ordered Father’s parental rights severed.

                                DISCUSSION

¶8            Father contends that the court erred in finding that severance
was in the best interests of Child because the Department did not present
sufficient evidence to justify the finding. He also asserts that the court
impermissibly considered the text of his neck tattoo in making its decision,
in violation of his First Amendment rights.

I.     THE JUVENILE COURT PROPERLY CONCLUDED THAT
       SEVERANCE WAS IN THE BEST INTERESTS OF CHILD.

¶9             In reviewing a severance order, we accept the court’s findings
of fact unless they are not supported by any reasonable evidence, and we
will affirm unless the order is clearly erroneous. Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). To sever parental rights, the
court must find clear and convincing evidence of at least one statutory
ground for severance, and that a preponderance of the evidence shows that
severance is in the best interests of the child. A.R.S. § 8-533(B); Jennifer G. v.
Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005). The best-
interests determination must explain “how the [children] would benefit
from a severance or be harmed by the continuation of the relationship.”


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                     MICHAEL M., SR. v. DCS, M.M.
                         Decision of the Court
Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 30 (App. 2010)
(citation omitted). The court may consider factors such as whether an
adoptive placement is immediately available. Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998). However, the juvenile court does
not “weigh alternative placement possibilities to determine which might be
better.” Id.

¶10            The caseworkers from the Department and the Community
presented sufficient evidence for the court to conclude that severance was
in the best interests of Child. Both testified that the Community had
identified another relative in the Community who would be willing to
adopt Child, demonstrating that severance would benefit Child. Both also
testified that Child would be harmed if he remained with Father because of
his substance abuse, criminal activities and unwillingness to participate in
services to address those problems.

¶11            Though Stepmother did meet the needs of Child, she only
qualified as an ICWA-compliant placement because of her marriage to
Father; if Father’s rights were terminated, Stepmother would no longer be
compliant. As the court pointed out, Stepmother’s fitness as a temporary
placement had no relevance to the best-interests finding. 4 Additionally, the
testimony from Stepmother indicates that she does not believe Father
committed aggravated assault, and she denies his history of drug use. She
testified she would allow Father to move back in with her and Child when
he is released. The court’s concern about Stepmother’s “blind spot when it
came to Father, his criminal history and his drug use history” was
warranted. Taken as a whole, these facts were sufficient to permit the court
to conclude that a continuing relationship would harm Child. The record
adequately supports the court’s determination that severance was in the
best interests of Child, and the court did not abuse its discretion.

II.   THE JUVENILE COURT’S FINDING CONCERNING FATHER’S
      TATTOO DID NOT VIOLATE FATHER’S FIRST AMENDMENT
      RIGHTS.

¶12           We find nothing on the record that impermissibly interfered
with Father’s First Amendment rights. The court did make a finding of fact
regarding Father’s tattoo in the severance order, and its questions to Father
implied the court believed that the tattoo did not set a good example for
Child. But the court did not tell Father he could not express himself through

4      Although the court requested briefings on legal authority allowing
consideration of the placement with Stepmother in the best-interests
findings, the record does not include any such briefing.

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                      MICHAEL M., SR. v. DCS, M.M.
                          Decision of the Court
the tattoo, that the tattoo was impermissible, or that he would be punished
for having it. The tattoo was simply another statement by Father, and the
court had the ability to take all of his statements made during the course of
the severance hearing into consideration in its conclusions.

¶13           Second, contrary to Father’s assertion, the court’s mention of
his tattoo was not “governmental persecution . . . for engaging in free
speech.” The court did not tie the tattoo to the conclusion that severance
was in the best interests of Child. The conclusions of law do not mention
the tattoo, and the tattoo does not appear as a factor in the court’s decision
that severance was in the best interests of Child. To the contrary, the court’s
conclusion focused on Father’s relationship with Child, his criminal history,
his substance abuse, and Stepmother’s “blind spot” concerning Father’s
history. The presence or absence of the tattoo would not have altered the
outcome because the relevant evidence in the record supports the court’s
findings.

                              CONCLUSION

¶14           For the foregoing reasons, we affirm the severance of Father’s
parental rights to Child.




                                   :ama




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