Timothy B. v. Dep't of Child Safety

• Decision Date: 08 October 2020
• Docket Number: No. 1 CA-JV 20-0075,1 CA-JV 20-0075
• Citation: 250 Ariz. 139,476 P.3d 319
• Parties: TIMOTHY B., Michael M., Appellants, v. DEPARTMENT OF CHILD SAFETY, H.B., J.J., Appellees.
• Court: Arizona Court of Appeals

250 Ariz. 139

476 P.3d 319

TIMOTHY B., Michael M., Appellants,

v.DEPARTMENT OF CHILD SAFETY, H.B., J.J., Appellees.

No. 1 CA-JV 20-0075

Court of Appeals of Arizona, Division 1.

FILED October 8, 2020

David W. Bell Attorney at Law, Higley, By David W. Bell, Counsel for Appellant Timothy B.

Vierling Law Offices, Phoenix, By Thomas A. Vierling, Counsel for Appellant Michael M.

Arizona Attorney General's Office, Tucson, By Autumn Spritzer, Counsel for Appellee Department of Child Safety

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined.

WINTHROP, Judge:

¶1 Two natural fathers, Timothy B. ("Timothy") and Michael M. ("Michael"), appeal the juvenile court orders terminating their parental rights to their respective children with the same mother. Both argue that the termination of their parental rights was not in the best interests of their children. For the reasons set forth below, we affirm the juvenile court's best-interests finding and termination order as it relates to Michael, but vacate the court's best-interests finding and termination order as it relates to Timothy and remand for reconsideration.

¶2 Timothy also appeals the court's finding that the state met its burden in proving the statutory ground of length of incarceration under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(4). In that regard, we hold that, on this record, the juvenile court erred in strictly applying a narrow concept of "normal home" as outlined in an earlier decision of this court, Maricopa County Juvenile Action No. JS-5609 , 149 Ariz. 573, 576, 720 P.2d 548, 551 (App. 1986). In that regard, we provide some guidance and remand this issue for the court to reconsider as well.

FACTS AND PROCEDURAL HISTORY

¶3 Michael and Jaliece J. ("Mother") are the natural parents of J.J., born January 2006. In March 2010, Michael was arrested, and in January 2011, he was sentenced to four concurrent terms of imprisonment, the longest of which was 10 years. J.J. was five years old at the time Michael was sentenced. Before his arrest, Michael had spent some time caring for J.J., although that time was brief because of conflicts with Mother. While incarcerated, however, Michael maintained contact with J.J. by mail through 2012, and by phone on and off through 2016.

¶4 Timothy and Mother are the natural parents of H.B., born September 2012. In October 2013, Timothy was arrested and charged with multiple felonies. In March 2015, he was convicted of four felonies and sentenced to an aggregate of 12.5 years in prison and lifetime probation after his release. From the time she was born through her father's arrest, H.B. lived with her parents and some of Mother's other children; she moved in with Timothy's mother and sister when Timothy was incarcerated but continued to visit Mother and had frequent contact with Timothy.

¶5 The Department of Child Safety (the "Department") filed a petition for dependency as to Mother, Timothy, and Michael in January 2017. The petition addressed concerns for four children, including H.B. and J.J., and alleged Mother had been arrested¹ and she had neglected to provide for her children, abused substances, and was involved in domestic violence with another of her children's fathers. H.B. and J.J. were found dependent as to their respective fathers because, as noted above, each man was incarcerated. Shortly thereafter, the juvenile court granted the Department's request to place H.B. with a younger sibling in a qualified kinship placement with a friend of Mother's. The court granted the Department's request to place J.J. in the same placement a few months later.

¶6 After the dependency action was initiated, the Department facilitated two visits with Michael and J.J. in 2018, before the Department learned from prison officials that Michael's visitation privileges had been suspended. Michael also sent J.J. a few letters.

¶7 Timothy repeatedly requested visitation and phone calls with H.B., and eventually the Department supervised weekly phone calls and in-person visits once or twice a month. Timothy also frequently sent gifts and letters to H.B.

¶8 The court ordered all of the children returned to Mother in May 2018. Just six months later, however, the court again removed the children from Mother after her participation in Department services waned, she tested positive for cocaine, and the children's school attendance became "sporadic." The Department returned H.B. and J.J. to the kinship placement. The following month, the Department moved to terminate the parental rights of Mother, Timothy, and Michael.

¶9 After a five-day hearing, the juvenile court terminated the parental rights of Mother, Timothy, and Michael to their respective children.² Timothy and Michael timely appeal, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

ANALYSIS

¶10 Natural parents have fundamental rights to the care and custody of their children and to associate with them. Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ; Maricopa Cnty. Juv. Action No. JD-5312 , 178 Ariz. 372, 374, 873 P.2d 710, 712 (App. 1994). These fundamental rights do "not evaporate simply because" the parents "have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer , 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; see JD-5312 , 178 Ariz. at 374, 873 P.2d at 712. But these rights are not absolute, and the juvenile court may terminate a parent's relationship with his or her child under certain circumstances. Kent K. v. Bobby M. , 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005). Termination of a parent-child relationship constitutes a severe and permanent consequence that the juvenile court should order "only in the most extraordinary circumstances, when all other efforts to preserve the relationship have failed." Maricopa Cnty. Juv. Action No. JA 33794 , 171 Ariz. 90, 91-92, 828 P.2d 1231, 1232–33 (App. 1991) ; see Maricopa Cnty. Juv. Action No. JS-500274 , 167 Ariz. 1, 4, 804 P.2d 730, 733 (1990) ("[T]ermination of parental rights is not favored and ... it generally should be considered only as a last resort."). Once a juvenile court has terminated a parent-child relationship, the natural parent loses not just the right to care and custody of the child, but the right to associate with or even contact the child. See JD-5312 , 178 Ariz. at 374-75, 873 P.2d at 712–13 ; Maricopa Cnty. Juv. Action No. JS-6831 , 155 Ariz. 556, 559, 748 P.2d 785, 788 (App. 1988).

¶11 To terminate a parent-child relationship, the juvenile court must find by clear and convincing evidence at least one of the statutory grounds set forth in A.R.S. § 8-533(B). Raymond F. v. Ariz. Dep't of Econ. Sec. , 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381(App. 2010). The court must also find by a preponderance of the evidence that termination of the parental relationship is in the child's best interests. Id. We review de novo the court's interpretation of relevant statutes and will not disturb its decision absent an abuse of discretion or unless no reasonable evidence supports its findings of fact. Mary Lou C. v. Ariz. Dep't of Econ. Sec. , 207 Ariz. 43, 47, ¶¶ 8, 9, 83 P.3d 43, 47 (App. 2004). "[T]his court will not reweigh the evidence but will look only to determine if there is evidence to sustain the court's ruling." Id.

I. Termination Pursuant to A.R.S. § 8-533(B)(4)

¶12 The juvenile court terminated Timothy and Michael's respective parental rights on the length-of-incarceration ground. See A.R.S. § 8-533(B)(4). On appeal, only Timothy challenges the court's ruling on the ground for termination.

¶13 On this ground, the Department bore the burden to establish by clear and convincing evidence that Timothy "is deprived of civil liberties due to the conviction of a felony" and that "the sentence ... is of such length that [H.B.] will be deprived of a normal home for a period of years." A.R.S. § 8-533(B)(4). Timothy does not dispute that he has been deprived of his civil liberties due to a felony conviction, so we address only whether reasonable evidence supports the court's finding that H.B. will be deprived of a normal home for a period of years. As discussed in more detail below, the statute does not provide any guidance about the meaning of the requisite "period of years" or what constitutes a "normal home."

¶14 As we review the juvenile court's analysis and decision, we keep in mind the primary historical purpose of the statute, which has been to protect the health and safety of children through expediting "the adoption of numerous children who remain in temporary foster care for indeterminate lengths of time with no hope of being returned to their natural parents and, in so doing, promote a stable and long-term family environment for these children." James S. v. Ariz. Dep't of Econ. Sec. , 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998) (quoting Act of 1986, ch. 205, § 1, 1986 Ariz. Sess. Laws); see E.R. v. Dep't of Child Safety , 237 Ariz. 56, 59, ¶ 14, 344 P.3d 842, 845 (App. 2015).

¶15 The Arizona Supreme Court has acknowledged that A.R.S. § 8-533(B)(4) "sets out no ‘bright line’ " as to when a parent's sentence satisfies the standard for termination. Michael J. v. Ariz. Dep't of Econ. Sec. , 196 Ariz. 246, 251, ¶ 29, 995 P.2d 682, 687 (2000). Underscoring the fact-specific nature of this inquiry, the court noted that even a twenty-year sentence "might not provide sufficient basis for severing an incarcerated parent's rights." Id. To assist courts in navigating the "vague language"³ of the statute (and to prevent incarceration from becoming a per se ground for severance), the supreme court set forth six factors to consider:

(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

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