JESUS M. v. ARIZONA DEPT. OF ECONOMIC SEC.

• Citation: 203 Ariz. 278,53 P.3d 203
• Decision Date: 05 September 2002
• Docket Number: No. 2 CA-JV 2001-0097., No. 2 CA-JV 2001-0095
• Parties: JESUS M. and Yolanda M., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Blanca M., and Selena M., Appellees.
• Court: Court of Appeals of Arizona

53 P.3d 203

203 Ariz. 278

JESUS M. and Yolanda M., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Blanca M., and Selena M., Appellees.

Nos. -0095, -0097.

Court of Appeals of Arizona, Division 2, Department B.

September 5, 2002.

Suzanne Laursen, Tucson, for Appellant Jesus M.

Phillip H. Larriva, Tucson, for Appellant Yolanda M.

Janet Napolitano, Arizona Attorney General, by Michelle R. Nimmo, Tucson, for Appellee Arizona Department of Economic Security.

OPINION

PELANDER, J.

¶ 1 In these consolidated appeals, the father of Selena M. and the mother of Selena and Blanca M. appeal from the juvenile court's order of November 21, 2001, denying the mother's motion to establish a permanent guardianship for the girls and granting the state's motion to terminate both parents' rights to the children. The juvenile court terminated the father's rights based on the length of a prison sentence he is currently serving for a burglary conviction, A.R.S. § 8-533(B)(4). The court found severance of the mother's rights justified on grounds of mental illness and chronic substance abuse, § 8-533(B)(3), and length of time in care, § 8-533(B)(7)(a) and (b).

¶ 2 To justify severance pursuant to § 8-533(B)(4), the Arizona Department of Economic Security (ADES) is required to prove that a parent has been ordered to serve a prison sentence "of such length that the child will be deprived of a normal home for a period of years." To justify severance pursuant to § 8-533(B)(3), ADES must prove that a parent is unable to discharge parental responsibilities because of mental illness, mental deficiency, or chronic substance abuse and that the condition is reasonably likely to continue for a prolonged, indeterminate period. To justify severance pursuant to § 8-533(B)(7)(b), ADES must prove the child has been in a court-ordered, out-of-home placement for fifteen months or longer; the parent has been unable to remedy the circumstances which led to the out-of-home placement; and there is a substantial likelihood that the parent will be incapable of providing "proper and effective parental care and control in the near future." Under the latter ground, the court is required to consider the availability of reunification services and the parent's participation in those services. § 8-533(C).

¶ 3 Under any of the grounds enumerated in § 8-533(B), the court must also consider the best interests of the child. § 8-533(B); Michael J. v. Arizona Dep't of Econ. Sec., 196 Ariz. 246, ¶ 12, 995 P.2d 682, ¶ 12 (2000); In re Maricopa County Juvenile Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994). If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds. Michael J., 196 Ariz. 246, ¶ 27, 995 P.2d 682, ¶ 27; In re Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 756 P.2d 335 (App.1988).

¶ 4 The standard of proof required to terminate parental rights under § 8-533(B) is clear and convincing evidence. A.R.S. § 8-537(B); see also Ariz.R.P.Juv.Ct. 66(C), 17B A.R.S.; Michael J., 196 Ariz. 246, ¶ 12, 995 P.2d 682, ¶ 12. The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings. In re Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App.1987). On review, therefore, we 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. Michael J., 196 Ariz. 246, ¶ 20, 995 P.2d 682, ¶ 20; Jennifer B. v. Arizona Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App.1997).

¶ 5 The juvenile court in this case prepared a remarkably thorough, thirteen-page minute entry containing detailed findings of fact and conclusions of law. We have reviewed the record in its entirety and find it contains reasonable evidence to support the juvenile court's factual findings, which include the following: Blanca and Selena are the sixth and seventh of their mother's eight children, none of whom remains in her custody. Blanca, Selena, and four of their brothers were removed from Yolanda's custody in March 1999, several days after she had been evicted from her residence. Yolanda admitted the allegations of a first amended dependency petition, including the allegation that her serious drug addiction rendered her unable to care for her children, six of whom were adjudicated dependent as to her on April 9, 1999. Selena and Blanca were adjudicated dependent as to their respective fathers on the same date, both fathers having likewise admitted the allegations of the petition.

¶ 6 Selena's parents had been married for several months when she was born on June 4, 1997. Like Yolanda, Jesus was also a drug addict. In November 1997 he was sent to prison where he remains, serving a 6.5-year sentence for burglary. He testified that his earliest possible release date is in March 2003 and the latest is in January 2004. The court found his earliest possible release date to be October 2003.¹ The court also found that, because Jesus is a Mexican national, he faces deportation to Mexico upon his release from prison.

¶ 7 In the first of two issues he raises, Jesus argues that his sentence is not of such length as to deprive Selena of a normal home for a period of years. He contends the language of § 8-533(B)(4), "that the child will be deprived of a normal home for a period of years," is "forward looking," concerned only with the time remaining on the parent's sentence—from precisely what point, Jesus does not suggest—rather than with the overall length of the parent's incarceration. He claims that, from the time of the juvenile court's under-advisement ruling in November 2001, the remainder of his sentence was somewhere between sixteen and twenty-six months, a period he contends would not deprive Selena of a normal home for "a period of years."

¶ 8 We reject the father's suggestion that we ignore the four years he had already spent incarcerated between November 1997 and November 2001 and instead focus only on the amount of time remaining on his sentence. What matters to a dependent child is the total length of time the parent is absent from the family, not the more random time that may elapse between the conclusion of legal proceedings for severance and the parent's release from prison. We conclude the legislature used the words "will be deprived" in § 8-533(B)(4) to mean "will have been deprived" in total, intending to encompass the entire period of the parent's incarceration and absence from the home. See James S. v. Arizona Dep't of Econ. Sec., 193 Ariz. 351, ¶¶ 15-17, 972 P.2d 684, ¶¶ 15-17 (App.1998)

(father's 5.5-year sentence, begun when child was six months old and with more than three years remaining, was of sufficient length to satisfy § 8-533(B)(4) under circumstances of that case); In re Maricopa County Juvenile Action No. JS-9104, 183 Ariz. 455, 459-60, 904 P.2d 1279, 1283-84 (App. 1995) (5.25-year sentence, of which 1.5 years remained, justified severance under specific facts of case). Jesus has cited no authority in support of his proposed alternative construction, which we find to be at odds with the purpose behind the statute.

¶ 9 By itself, the length of a parent's sentence is not dispositive in any event. Instead, the juvenile court must consider the many facts and circumstances specific to each case. James S., 193 Ariz. 351, ¶ 14, 972 P.2d 684, ¶ 14. As our supreme court held in Michael J:

[T]he better approach is to consider each case on its particular facts.... The trial court, in making its decision, should consider all relevant factors, including, but 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 provide a normal home life, and (6) the effect of the deprivation of a parental presence on the child at issue. After considering those and other relevant factors, the trial court can determine whether the sentence is of such a length as to deprive a child of a normal home for a period of years.

196 Ariz. 246, ¶ 29, 995 P.2d 682, ¶ 29.

¶ 10 In its ruling, the juvenile court cited Michael J., quoted those factors, and applied them as follows:

In applying these standards, the Court concludes that the State has met its burden of proof as to the father under the second prong of A.R.S. § 8-533(B)(4). The evidence presented showed that the father had never parented this child and had no relationship with her prior to his incarceration. Furthermore, the father did not even know the minor's birth date and made no attempts through gifts, cards, letters or support to establish a relationship with her throughout the over two and one-half years of the dependency case, despite being represented by counsel and appearing at most of the court hearings.

... The father will remain incarcerated until at least October 2003 and then will likely be deported as he is an illegal alien. There will be no deprivation to Selena at the termination of the father's presence in her life; in fact, all evidence points to the contrary. While the father expressed support for placement of the minors with their mother, he never indicated any desire to parent Selena.

¶ 11 Although Jesus argues that his and Yolanda's testimony at the severance hearing supplied evidence directly contrary to the juvenile court's findings as to the nature and extent of his relationship with Selena...