James S. v. Arizona Dept. of Economic Sec.

• Decision Date: 06 October 1998
• Docket Number: No. 1,CA-JV,1
• Citation: 193 Ariz. 351,972 P.2d 684
• Parties: , 279 Ariz. Adv. Rep. 17 JAMES S., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Krystal S., Appellees. 98-0001.
• Court: Arizona Court of Appeals

Page 684

972 P.2d 684

193 Ariz. 351, 279 Ariz. Adv. Rep. 17

JAMES S., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Krystal S., Appellees.

No. 1 CA-JV 98-0001.

Court of Appeals of Arizona,

Division 1, Department E.

Oct. 6, 1998.

Review Denied Feb. 23, 1999.

A. Douglas LaSota & Associates, P.C. by A. Douglas LaSota, Phoenix, for Appellant Father.

Theut, Theut, & Theut, P.C. by Brian J. Theut, Phoenix, for Appellee Child.

Grant Woods, Attorney General by Michelle Allen Flemming, Assistant Attorney General, Phoenix, for Appellee ADES.

OPINION

PATTERSON, Judge.

¶1 James S. (father) appeals the juvenile court's termination of the parent-child relationship between himself and his child. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Krystal S. (the child) was born on April 25, 1995. Father began serving a 5.5 year prison sentence on November 11, 1995. Child Protective Services (CPS) removed the child from her mother's care on May 1, 1996, due to the mother's neglect and drug use.

¶3 On April 22, 1997, the Arizona Department of Economic Security (ADES) filed a petition to terminate the parent-child relationship between the father and the child under Arizona Revised Statutes Annotated (A.R.S.) section 8-533(B) (best interest of child). ¹ In addition to alleging that severance of father's parental rights would be in the best interest of the child, the petition alleged A.R.S. section 8-533(B)(4) (felony conviction) as grounds for terminating father's rights. ADES alleged that the sentence for father's felony conviction was of such a length as to deprive the child of a normal home for a number of years.

¶4 At the hearing on the petition for termination, father testified that he lived with the child and her mother from the date of the child's birth until his incarceration approximately six months later. He testified that, while the mother was the child's primary caretaker, he spent about half of the day with the child. He further testified that he had established a bonded relationship with the child during that time.

¶5 Father also testified that, during the six months he was with the child, he used drugs and alcohol on a daily basis. More specifically, father testified that he drank a case of beer per day, used marijuana daily and used cocaine weekly. The caseworker, who was qualified without objection as an expert witness, testified that the child could not have bonded with father during the short time they were together given the father's drug and alcohol abuse.

¶6 Father's anticipated date of release to community supervision is June 14, 2001. The child will be six years old at that time.

¶7 The child and her half sister have been placed with a relative. The relative is seeking to adopt both of them. Further, the CPS caseworker testified that adoption by this relative placement was in the child's best interest and denial of the petition for termination would cause the child to suffer. More specifically, the caseworker testified that the child would benefit from severance because adoption would give the child the feeling of being part of a family that a young child requires. Additionally, the caseworker testified that failure of the court to grant the severance would be detrimental to the child's best interest because the father's incarceration has made him unable to bond with the child. The child does not know her father.

¶8 The juvenile court found:

7. JAMES [ ... ] [ ... ] aka JAMES [ ... ] is deprived of his civil liberties due to the conviction of a felony. The father's sentence is of such length that the children (sic) will be deprived of a normal home for a period of years.

8. JAMES [ ... ] [ ... ] aka JAMES [ ... ] is currently incarcerated. His sentence end date is in the year 2001.

....

11. JAMES [ ... ] [ ... ] aka JAMES [ ... ] cannot meet KRYSTAL [ ... ] [ ...'s] basic needs, including medical, social and educational needs. Further, Mr. [ ... ] cannot provide--either now or in the near future--a home which would provide a safe, nurturing, and emotionally stable environment.

12. The Court further finds that Severance would be in the child's best interest and welfare.

To support the best interest finding, the court found that: 1) the placement with a relative was "very positive"; 2) no anticipated barriers existed to adoption certification of the relative; 3) if there was no severance the child would suffer detrimental consequences because she has not bonded with the father; 4) the child has bonded with her relative; 5) the child is currently placed with her half sibling, with whom she has an ongoing relationship; 6) the child is adoptable; and 7) a social study prepared by Joan Drydyk, a severance specialist, supported severance and adoption as in the child's best interest.

¶9 The juvenile court granted the petition for termination and father appeals from that ruling. We have jurisdiction pursuant to A.R.S. section 8-236.

DISCUSSION

¶10 The conditions warranting severance of the parent-child relationship must be proven by clear and convincing evidence. In re Yuma County J-88-201, 172 Ariz. 50, 53, 833 P.2d 721, 724 (App.1992) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). On appeal, we accept the juvenile court's findings of fact in support of severance unless they are clearly erroneous. Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App.1994). We will affirm the juvenile court's ruling where sufficient evidence exists to support its findings. Pima County Juv. Action No. S-949, 134 Ariz. 442, 443, 657 P.2d 430, 431 (App.1982).

¶11 Father argues that the juvenile court abused its discretion in granting ADES's petition for termination of the parent-child relationship under A.R.S. section 8-533. Specifically, father argues that the trial court erred because ADES failed to prove by clear and convincing evidence the statutory grounds for termination in A.R.S. section 8-533(B)(4). ²

¶12 Father further argues that the length of incarceration cannot be the sole cause for termination. ³ For this proposition, father cites to a Division Two case, Pima County Juvenile Action No. S-624, 126 Ariz. 488, 616 P.2d 948 (App.1980). However, Division Two of this court did not refer to A.R.S. section 8-533(B)(4) but instead relied on case law that preexisted the statute.

¶13 We agree with father that the juvenile court must consider more than just the conviction and length of sentence. In every case, the juvenile court must also consider the best interest of the child. A.R.S. § 8-533(B); Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). However, in addition to best interest, the court need only find one of the factors enumerated in A.R.S. section 8-533(B) to terminate parental rights. Maricopa County Juv. Action No. JA-33794, 171 Ariz. 90, 92, 828 P.2d 1231, 1233 (App.1991) ("Section 8-533 permits termination of the parent-child relationship only if the trial court finds that at least one of those grounds enumerated in the statute applies.").

¶14 The juvenile court relied on A.R.S. section 8-533(B)(4) in terminating father's parental rights. That statute provides in relevant part:

B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court shall also consider the availability of reunification services to the parent and the participation of the parent in these services and the best interests of the child:

....

4. That the parent is deprived of civil liberties due to the conviction of a felony ... if the sentence of such parent is of such length that the child will be deprived of a normal home for a period of years.

(Emphasis added). ⁴ This section does not specify any certain amount of time for the sentence. Instead, the juvenile court must determine that the length is such "that the child will be deprived of a normal home for a period of years." A.R.S. § 8-533(B)(4). The father's attempt to rely on previous case law fails because the juvenile court's analysis is necessarily fact specific. See Maricopa County Juv. Action No. JS-9104, 183 Ariz. 455, 460, 904 P.2d 1279, 1284 (App.1995) (trial court must look at many factors in a severance proceeding). Whether a parent's sentence for a felony conviction deprives a child of a normal home will vary depending on the facts of each case. Id. (limiting its holding to the facts of the case).

¶15 Father attempts to distinguish the only Arizona case to affirm the termination of parental rights with a sentence of five years. Action No. JS-9104, 183 Ariz. at 459, 904 P.2d at 1283. ⁵ However, the evidence in this case more strongly favors severance than the evidence in Action No. JS-9104. In Action No. JS-9104, the father and daughter had had much more time to develop a bonded relationship than in the instant case. Specifically, the father in Action No. JS-9104 had a seven-year relationship with his daughter before his arrest for sale of cocaine. Id. at 457, 904 P.2d at 1281. Here, the father and child were together for only six months before father was arrested and sentenced to a 5.5 year prison term. He had more than three years remaining in prison at the time of severance. In Action No. JS-9104, the appellate court looked to the evidence presented by the parties regarding the potential for the child to be deprived of a normal home in determining whether the juvenile court's findings were clearly erroneous. Id. at 460, 904 P.2d at 1284. We must do the same.

¶16 We find the juvenile court's findings were supported by clear and convincing evidence and thus, were not clearly erroneous. First, the child was only six months old when father was arrested. The caseworker testified that, because of the child's young age, it is unlikely she was bonded to father. The child will be six years old when father's...