Christy C. v. Ariz. Dept. of Economic Sec.

• Decision Date: 20 March 2007
• Docket Number: No. 1 CA-JV 06-0142.,1 CA-JV 06-0142.
• Citation: 214 Ariz. 445,153 P.3d 1074
• Parties: CHRISTY C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Antonio F. Jr., Cruzito F., Johnny C., Sierra C., Corina C., Appellees.
• Court: Arizona Court of Appeals

153 P.3d 1074

214 Ariz. 445

CHRISTY C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Antonio F. Jr., Cruzito F., Johnny C., Sierra C., Corina C., Appellees.

No. 1 CA-JV 06-0142.

Court of Appeals of Arizona, Division 1, Department B.

March 20, 2007.

Terry Goddard, Attorney General, by Dawn R. Williams, Assistant Attorney General, Tucson, Attorneys for Appellee Arizona Department of Economic Security.

David Bell, Mesa, Attorney for Appellant.

OPINION

BARKER, Judge.

¶ 1 We treat in this case the relationship of the individual factors set forth in Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, 995 P.2d 682 (2000), to a juvenile court's decision to sever parental rights because of a felony sentence "of such length that the child will be deprived of a normal home for a period of years." Ariz. Rev.Stat. ("A.R.S.") section 8-533(B)(4) (Supp.2006). For the reasons below, we affirm.

I.

¶ 2 Christy C. ("Christy") appeals from the juvenile court's termination of her parental rights as to five of her six children. Christy is the mother of six children: Sierra C., born March 1, 1997; Angelica C., born October 24, 1998; Corina C., born November 17, 2000; Antonio F., born November 15, 2001; Johnny C., born January 3, 2004; and Cruzito F., born July 7, 2005. Child Protective Services ("CPS") has been involved with Christy for a period of years, since at least Johnny C.'s birth in January 2004; however, it is unclear from the evidence admitted at trial exactly when and why CPS initially became involved.

¶ 3 Christy has an extensive history of criminal activity. On December 16, 2003, Christy was arrested and charged with aggravated assault for slapping a police officer. She pled guilty and was placed on supervised probation for three years, in addition to deferred three-month incarceration to begin February 1, 2005. On March 12, 2004, Christy was charged with two counts of child abuse. Christy pled guilty to one count of child abuse and was placed on supervised probation for three years with the added requirements of parenting classes and drug testing.

¶ 4 On March 29, 2004, Christy and her boyfriend, Antonio, offered to sell heroin and a handgun to an undercover Phoenix police officer. When the police executed a search warrant on Christy's home, they found a loaded, stolen handgun in the children's diaper bag. The bag was lying on the kitchen floor within reach of the children. As a result of this incident, Antonio F., Jr., and Cruzito F. were placed with Antonio's mother. Christy's three other children were residing with Christy's mother at that time.

¶ 5 Christy failed to report for her three months of deferred jail on February 1, 2005. A Maricopa County Probation Violation Report stated, "[b]ecause of CPS involvement, [Christy] does not have custody of any of her five children, but continues to use them as excuses for not attending the mandatory two times per week group sessions. She has also recently used them as an excuse for failing to self-surrender to complete her deferred jail condition."

¶ 6 On September 19, 2005, Christy was again arrested for an incident involving the sale of drugs. She was indicted by a grand jury on four counts: 1) misconduct involving weapons, a class four felony; 2) possession for sale of narcotic drugs, a class two felony; 3) possession or use of dangerous drugs, a class four felony; and 4) misconduct involving weapons, a class four felony. On February 6, 2006, Christy pled guilty to count two. Pursuant to the plea agreement, counts one and three were dismissed; it is unclear whether count four was also dismissed. Christy was sentenced to 6.5 years of imprisonment to begin March 9, 2006. Additionally, because Christy had violated the terms of her probation for her December 16, 2003 aggravated assault charge, her probation was revoked. She was instead sentenced to one year of imprisonment for that charge, to begin March 9, 2006, and to run concurrently with her 6.5 year sentence. Christy's probation period for the child abuse charge was also reinstated for a period of two years following release from her prison term.

¶ 7 Following her September 19, 2005 arrest, the Arizona Department of Economic Security ("ADES") filed a petition alleging that Sierra C., Corina C., Antonio F., Jr., Johnny C., and Cruzito F. were dependent as to Christy. Although the petition also alleged that Angelica C. was dependent, custody of Angelica C. was later given to her biological father and the dependency petition as to Angelica C. was dismissed. The dependency petition as to the remaining five children alleged that Christy was unable to parent due to substance abuse, distribution of drugs from the home, weapons in the home, neglect, and incarceration. On October 25, 2005, the juvenile court found the allegations in the dependency petition to be true by a preponderance of the evidence.

¶ 8 After Christy pled guilty to possession for sale of narcotics and was sentenced to 6.5 years of imprisonment, ADES filed a motion to terminate her parental rights as to the five children.¹ The motion alleged that Christy's felony conviction proved her unfitness as a parent and that the prison sentence would deprive the children "of a normal home for a period of years" under A.R.S. § 8-533(B)(4). The motion further alleged that severance of parental rights would be in the children's best interests.

¶ 9 A hearing regarding the termination of Christy's parental rights was held on June 2, 2006. Although Christy was present at the hearing, Christy's CPS case manager, Marisa Sanchez, was the only person to testify. Among other things, Sanchez testified that ADES was seeking severance in this case "due to the length of [the prison] sentence." Sanchez also testified that severance and adoption were in the children's best interests, as Christy was unable to parent for the foreseeable future. She stated that the children were placed in homes that were meeting their needs, and that the children were adoptable. The presentence reports, pleas, and related documents to Christy's criminal offenses were also admitted into evidence at trial. The CPS reports themselves, though marked, were never offered into evidence.²

¶ 10 On June 6, 2006, the juvenile court held that Christy's term of imprisonment was "of such a length that all of the children will be deprived of a normal home for a period of years." In making its decision, the court cited Michael J., 196 Ariz. 246, 995 P.2d 682, which requires the court to consider "various factors in determining whether the sentence is of such a length to deprive the children of a normal home." The juvenile court stated:

The Court has considered the ages of the children, which as noted before, range from 11 months to nine years. The children will range from 7 to 15 years when [Christy is] to be released. Even upon release, [Christy] will be on probation for child abuse for some time. It is highly unlikely [Christy] will be able to adequately care for the children after release as [she] would have to show a period of sobriety for at least a year and participate in several services, particularly as to [her] substance abuse histories. The court has also considered that only barely minimal contact with the children can be maintained during [her] period[] of incarceration. As to the nature of the relationship prior to incarceration ... [the court] notes this is not the first time the children were taken into care.... [A]lternative family placements were considered, but ultimately rejected as they would not provide a suitably stable long-term placement....

The court also specifically found that severance was in each of the children's best interests.

¶ 11 Christy timely appealed from the juvenile court's order. We have jurisdiction over this appeal pursuant to A.R.S. §§ 8-235 (Supp.2006), 12-120.21 (2003), and 12-2101(B) (2003).

II.

¶ 12 We view the facts in the light most favorable to sustaining the juvenile court's decision. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App.2002) (citing Maricopa County Juv. Action No. J-75482, 111 Ariz. 588, 591, 536 P.2d 197, 200 (1975)). Termination of the parent-child relationship is appropriate if any one of the statutory grounds is proved by clear and convincing evidence. Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12, 123 P.3d 186, 189 (App.2005). A finding that termination is in the children's best interests must be made by a preponderance of the evidence. Id. (citing Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005)). "[W]e will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205.

¶ 13 Christy raises two issues on appeal. She argues: 1) the evidence presented was insufficient to show that her prison sentence would deprive the children of "a normal home for a period of years," A.R.S. § 8-533(B)(4), pursuant to the factors set forth in Michael J., 196 Ariz. at 251-52, ¶ 29, 995 P.2d at 687-88; and 2) the juvenile court erred in failing to make "more individualized findings." We consider each argument below.

A.

¶ 14 A parent-child relationship may be terminated on the grounds that "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). In Michael J., the Arizona Supreme Court set out a non-exclusive list of factors that courts should consider when determining if a parent's prison sentence will deprive a child of "a normal home for a period of years." 196 Ariz. at 251-52, ¶ 29, 995 P.2d at 687-88. The non-exclusive factors are as follows:

(1) the length and strength of any parent-child relationship existing...