Maricopa County, Juvenile Action No. JS-9104, Matter of
| Decision Date | 06 June 1995 |
| Docket Number | JS-9104,CA-JV,No. 1,1 |
| Citation | 904 P.2d 1279,183 Ariz. 455 |
| Parties | In the Matter of the Appeal in MARICOPA COUNTY, JUVENILE ACTION NO.94-0082. |
| Court | Arizona Court of Appeals |
Natural father appeals from a juvenile court judgment severing his parental rights to his daughter Erin, who was born in 1982 and who lived with him until 1990 when he was arrested and charged with one count of sale of cocaine. The severance was ordered in 1994 solely on grounds that Father's 1991 sentence to prison for 5.25 years would deprive Erin of a normal home for a period of years. See Ariz.Rev.Stat.Ann. ("A.R.S.") § 8-533(B)(4) (1989). On the facts presented, we conclude that the juvenile court did not abuse its discretion in severing Father's parental rights.
Erin was born in December 1982, shortly before the 1983 marriage of Father and Mother. The couple's unhappy marriage was terminated by divorce in 1987. At that time the court ordered that Father and Mother share joint custody, with Father to provide Erin's primary residence and Mother to have standard visitation rights and pay $141 in monthly child support. Mother was unhappy that she had to pay child support and that Erin was living with Father. In 1988, Mother married Stepfather, a good husband and provider who quickly developed a close relationship with Erin.
In May 1990, with Erin and her half-brother, Eric, present, Father was arrested at his home for sale of cocaine to an undercover officer. When Father went to jail, Erin, then seven, went to live with Mother and Stepfather. In November 1990, the domestic relations court granted Mother's petition for sole custody of Erin. For reasons that are not clear on this record, the sheriff's office did not transport Father to the courtroom for the custody hearing apparently because Father stated he did not wish to appear. At the hearing the court ordered that he have no visitation with Erin and pay no child support. The court also ruled that on his release from prison, Father could petition to gain visitation rights (and begin child support obligations).
In April 1991, Father was convicted on the drug charge and sent to prison for the mitigated term of 5.25 years, which by law must be served day-for-day. Father will be released from prison in December 1995, about fifteen months after entry of the judgment severing his parental rights, and about twenty-seven months after Mother filed the severance petition in September 1993.
At the severance hearing, Mother and Stepfather testified that they sought severance of Father's parental rights because Erin had repeatedly expressed a strong desire that Stepfather adopt her. Erin had no contact with Father after his incarceration in 1990.
The severance trial in June and August 1994 was an emotional and hotly-contested proceeding in which Mother and Father offered the court much negative evidence about each other. Because the judgment does not include factual findings of unfitness, there is no need here for a litany of the negative evidence offered by Erin's parents about each other. It suffices to say that Mother admitted she had been a prostitute with drug and alcohol problems as well as mental health problems for some years until about 1984, Father admitted he abused drugs for several years until his arrest in 1990; neither parent thought the problems of the other were entirely in the past. In terms of positive evidence, the record supports a finding that both parents have substantially reformed in recent years, Father in prison and Mother in a new job and new marriage.
Three experts--an adoption services caseworker, a therapist (retained by Mother) and a psychologist (also retained by Mother)--testified that severance and subsequent adoption by Stepfather would be in Erin's best interests. At Father's request, the court appointed another psychologist to evaluate Erin's best interests and, based in part on this evaluation, the child's guardian ad litem reported to the court in August 1994 (post-trial) that she also believed that severance would be in Erin's best interests, although she was critical of the process of evaluation.
In August 1994, the court ordered severance of Father's parental rights, concluding in relevant part as follows:
2. The Petitioner [mother] has established by clear and convincing evidence that [father] is deprived of his civil liberties due to his conviction for sale of narcotic drugs, a felony. The sentence for that offense is of such a length that his child, Erin, has been and will be deprived of a normal home provided by him for a period of years sufficient to irreparably damage the parent-child relationship between [father] and his daughter, Erin. A.R.S. § 8-533(B)(4).
3. The Petitioner has not established by clear and convincing evidence that [father] abandoned his child Erin within the meaning of A.R.S. § 8-533(B)(1).
4. The Petitioner has established by clear and convincing evidence that it is in the best interests of the child to terminate the parent-child relationship between her and [father].
Father timely appealed. We have jurisdiction pursuant to A.R.S. section 12-120.21(A)(1) (1992).
Father raises several issues, but we discuss only his claim that the court erred by severing parental rights on length-of-sentence grounds stated in paragraph 2 of the judgment. We do not agree with Father under the totality of the facts of this case. We find no abuse of discretion in paragraphs 3 and 4 of the judgment, nor do we find reversible error in the second sentence of paragraph 2, quoted above.
This Court will reverse a juvenile court's ruling only if its findings of fact are clearly erroneous or unsupported by reasonable evidence. E.g., Maricopa County Juvenile Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App.1994) (citing Pima County Severance Action No. S-1607, 147 Ariz. 237, 238, 709 P.2d 871, 872 (1985)); Maricopa County Juvenile Action No. JS-8441, 175 Ariz. 463, 465, 857 P.2d. 1317, 1319 (App.1993); Pima County Juvenile Severance Action No. S-2710, 164 Ariz. 21, 23, 790 P.2d 307, 309 (App.1990); Yuma County J-88-201, 172 Ariz. 50, 53, 833 P.2d 721, 724 (App.1992). Because of constitutional constraints, findings in support of severance must be demonstrated by clear and convincing evidence. See, e.g., Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 4-5, 804 P.2d 730, 733-34 (1990); Pima County Juvenile Action No. S-1147, 135 Ariz. 184, 185, 659 P.2d 1329, 1330 (App.1983) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).
In severing Father's parental rights, the juvenile court relied solely on A.R.S. section 8-533(B)(4) (1989), which provides:
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 may also consider the needs of the child: 1
* * * * * *
4. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which such parent was convicted is of such nature as to prove the unfitness of such parent to have future custody and control of the child, or if the sentence of such parent is of such a length that the child will be deprived of a normal home for a period of years.
Abandonment or neglect may also justify severance, but the juvenile court found that mother failed to meet her burden of proving abandonment, and the issue of neglect was not raised. See A.R.S. § 8-533(B)(1) and (2).
Because there was no finding that the nature of Father's conviction implied unfitness, the only statutory ground for severing his parental rights was that Erin was deprived of a normal home based on the length of the 5.25 year sentence, of which about 1.5 years remained when the severance hearing began in June 1994.
According to the facts in this case, we agree that a 5.25 year prison sentence supports a court-ordered severance of this parent-child relationship. We find no Arizona case upholding severance when a parent with a previous seven-year relationship with a child lost parental rights because of a 5.25 year prison sentence on a drug conviction. All reported Arizona cases mentioning section 8-533(B)(4) grounds are distinguishable.
In Maricopa County Juvenile Action No. JS-7499, 163 Ariz. 153, 786 P.2d 1004 (App.1989), section 8-533(B)(4) was invoked to sever parental rights of a father sentenced to twenty-five years in prison for raping and sodomizing his seven year old daughter. Severance was granted and affirmed based on the wilful abuse grounds provided in section 8-533(B)(2). Id. at 159, 786 P.2d at 1010.
In the case of Pima County Juvenile Severance Action No. S-2462, 162 Ariz. 536, 785 P.2d 56 (App.1989), a father sought reversal of the severance of his parental rights because his conviction for murdering the children's Mother had been reversed. The appellate court found that grounds for severance existed apart from the murder conviction, including evidence that the two young children Id. at 539, 785 P.2d at 59.
Perhaps the closest case to the present one is Maricopa County Juvenile Action No. JS-5609, 149 Ariz. 573, 720 P.2d 548 (App.1986), which affirmed severance of parental...
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