Timothy B., Michael M. v. Dcs

                                   IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                  TIMOTHY B., MICHAEL M., Appellants,

                                      v.

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

                            No. 1 CA-JV 20-0075
                              FILED 10-8-2020


           Appeal from the Superior Court in Maricopa County
                             No. JD33713
               The Honorable Michael D. Gordon, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

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
                 TIMOTHY B., MICHAEL M. v. DCS, et al.
                        Opinion of the Court



                                 OPINION

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


W I N T H R O P, 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 (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



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                TIMOTHY B., MICHAEL M. v. DCS, et al.
                       Opinion of the Court

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



1     The record indicates Mother was arrested for outstanding warrants
and served nine days in jail.



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                 TIMOTHY B., MICHAEL M. v. DCS, et al.
                        Opinion of the Court

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 (1972); Maricopa Cnty. Juv. Action No. JD-5312, 

178 Ariz. 372

,
374 (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
(1982); see 

JD-5312, 178 Ariz. at 374

. 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 (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 (App. 1991); see Maricopa Cnty. Juv. Action No. JS-500274, 

167 Ariz. 1

, 4 (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

; Maricopa Cnty. Juv.
Action No. JS-6831, 

155 Ariz. 556

, 559 (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 (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,




2      Mother is not a party to this appeal, and our decision does not affect
the juvenile court’s ruling terminating her parental rights. The juvenile
court also denied Timothy’s motion to change physical custody, in which
he requested H.B. be placed with her paternal aunt. He does not challenge
this decision on appeal.


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                  TIMOTHY B., MICHAEL M. v. DCS, et al.
                         Opinion of the Court

¶¶ 8, 9 (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 (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 (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 (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


3      Public Welfare Services for Children and Youth in Arizona: A Special
Report Prepared for the Arizona Legislative Council, Interim Committee on Health
and Welfare D-13 (1970) (referring to H.B. 13, 29th Leg., 2d Reg. Sess. (1970),



                                        5
                 TIMOTHY B., MICHAEL M. v. DCS, et al.
                        Opinion of the Court

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 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.

Id. at 251-52, ¶ 29.

The juvenile court should consider these non-exclusive
factors and all other relevant factors as part of the termination inquiry.
Christy C. v. Ariz. Dep’t of Econ. Sec., 

214 Ariz. 445

, 450, ¶ 15 (App. 2007).
Although the juvenile court is not required to list each factual finding on
the record for each of the factors, a lack of evidence on one or more relevant
factors may or may not require the reversal or remand of a termination
order.

Id. at 450, 451-52, ¶¶ 15, 19.

¶16            Here, the juvenile court made specific findings as to the first
five Michael J. factors and concluded those factors weighed in favor of
terminating Timothy’s parental rights. Timothy argues that the court erred
in relying on the “outdated definition” of “normal home” found in Maricopa
County Juvenile Action No. JS-5609, which states that the use of the term in
A.R.S. § 8-533(B)(4) “relates to respondent’s obligation to provide a normal
home, a home in which the respondent natural father has a presence” and
does not refer to a “normal home environment” created by 

others. 149 Ariz. at 575

(internal quotations omitted). That definition, Timothy contends,
was created fourteen years before the Arizona Supreme Court set forth the
Michael J. factors, and its continued application “essentially neuter[s]” the
supreme court’s intent to provide a more global view and comprehensive
assessment of the parent-child relationship at issue.

¶17           To illustrate his argument, Timothy points to the juvenile
court’s findings here that he had made “extraordinary” and “laudable”
efforts to maintain and nurture his relationship with H.B., notwithstanding
the barriers created by his incarceration. Despite finding “[t]here is no
question that [Timothy] has done all he can to maintain and nurture his


enacted as A.R.S. § 8-533), https://azmemory.azlibrary.gov/digital/
collection/statepubs/id/33490/rec/1.


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                 TIMOTHY B., MICHAEL M. v. DCS, et al.
                        Opinion of the Court

relationship with [H.B.],” the court then suggested those efforts did “not
translate into [H.B.] receiving all she needs from a parent.” The court found
that Timothy’s imprisonment “has proven to be too great an obstacle to
overcome in his attempt” to provide a normal home for H.B. “particularly
because there is no parent available,” given that the court terminated
Mother’s rights to H.B. as well. Elaborating on what it considered to be a
“normal home,” the juvenile court found that H.B. “has no parent available
to walk her to school, to teach her how to ride a bicycle, go to school
functions and help with homework on a regular basis.”

¶18              Although ideally, a natural parent is available to take on daily
responsibilities like those the juvenile court cited, many modern parents
who are not considered “unfit” are often personally unable to do so,
including parents on military deployment, single working parents,
chronically ill parents, or parents attending higher education programs.
While we do not agree with Timothy that the Michael J. factors are
necessarily “neutered” by the juvenile court’s continuing to consider the
definition of “normal home” in JS-5609, we agree that a less rigid definition
may be appropriate and the juvenile court should have the discretion to
consider that a “normal home” may include a parent with a non-traditional
presence. Cf. Pima Cnty. Juv. Action No. S-114487, 

179 Ariz. 86

, 97 (1994)
(“When . . . circumstances prevent the . . . father from exercising traditional
methods of bonding with his child, he must act persistently to establish the
relationship however possible and must vigorously assert his legal rights
to the extent necessary.”); Roberto F. v. Ariz. Dep’t of Econ. Sec., 

232 Ariz. 45

,
55, ¶ 42 (App. 2013) (“In any severance proceeding, the material issue facing
the court is whether a parent has the ability to properly parent his/her
child; it is irrelevant whether a child has a stronger attachment to [the foster
placement], whether [such placement is] more ‘nurturing,’ or whether [the
placement] might be more capable or better parents than a natural
parent.”).

¶19           The Department counters that Timothy’s argument
“implicitly invites this Court to hold that sympathy for an incarcerated
parent who makes sincere but necessarily inadequate efforts should trump
the other relevant” Michael J. factors. To accept Timothy’s argument, the
Department contends, would risk “rewrit[ing] the statutory ground to
dictate a result based on sympathy for an incarcerated parent.” We
disagree. Our concern is not driven by “sympathy” but is rather designed
to ensure the juvenile court does not unintentionally impinge on an
individual’s constitutional rights to a parental relationship with his or her
child based on a potentially outmoded or rigid concept of parenthood or a
“normal home.” Because, as discussed below, we remand Timothy’s case


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                 TIMOTHY B., MICHAEL M. v. DCS, et al.
                        Opinion of the Court

for reconsideration of the court’s best-interests finding, we also direct the
juvenile court to reconsider whether the Department has proven by clear
and convincing evidence that he is an unfit parent without relying entirely
on the narrow parameters of a “normal home” as set forth in Maricopa
County Juvenile Action No. JS-5609. This directive, however, should not be
construed as any opinion as to how the juvenile court should rule on that
issue.

       II.    Best Interests

¶20            Once the court finds a ground for termination by clear and
convincing evidence, the court must consider whether termination of the
parent-child relationship is in the best interests of the child. Demetrius L. v.
Joshlynn F., 

239 Ariz. 1

, 4, ¶ 15 (2016). At this stage, the court balances the
interests of the natural parent and the child:

       In a best interests inquiry, however, we can presume that the
       interests of the parent and child diverge because the court has
       already found the existence of one of the statutory grounds
       for termination by clear and convincing evidence. Thus,
       while a parent already found unfit maintains some interest in
       the care and custody of his or her child, the court’s
       determination that statutory grounds for severance of
       parental rights exist substantially reduces the importance of
       this interest. In considering the best interests of the child, the
       court must balance this diluted parental interest against the
       independent and often adverse interests of the child in a safe
       and stable home life.

Kent 

K., 210 Ariz. at 286

, ¶ 35 (internal citations omitted). Generally
speaking, termination may be in the best interests of the child if the child
will benefit from termination or if the child will face harm if the relationship
continued. Demetrius 

L., 239 Ariz. at 4

, ¶ 16. Although in many situations,
“the presence of a statutory ground [for termination] will have a negative
effect” on a child, “in some cases, this will not be true.” 

JS-6831, 155 Ariz. at 559

. Therefore, the best-interests analysis requires the court to “evaluate
the totality of circumstances,” which may include the bond between the
natural parent and the child, the availability of a prospective adoptive
placement, risk for abuse or neglect if the relationship is not terminated,
and placement with siblings. Dominique M. v. Dep’t of Child Safety, 

240 Ariz. 96

, 98-99, ¶¶ 10, 12 (App. 2016); see Audra T. v. Ariz. Dep’t of Econ. Sec., 

194 Ariz. 376

, 378, ¶ 6 (App. 1998).




                                       8
                 TIMOTHY B., MICHAEL M. v. DCS, et al.
                        Opinion of the Court

¶21            In finding that the termination of Timothy’s and Michael’s
parent-child relationships was in the best interests of their respective
children,4 the juvenile court cited Kent K. for the proposition that “[t]he
focus is now solely on the children’s best interest as distinct from those of
the parent.” (Emphasis added.) But our supreme court did not establish
such a standard. Indeed, that case requires the juvenile court to balance the
interests of both the child and the parent, as even “a parent already found
unfit maintains some interest in the care and custody” of his child. Kent 

K., 210 Ariz. at 286

, ¶ 35. Although the interests of the children must remain
“paramount” to those of the parent, the juvenile court may not entirely
ignore the parent’s interest. See A.R. v. Dep’t of Child Safety, 

246 Ariz. 402

,
406-07, ¶ 13 (App. 2019).

¶22            As to Timothy, the evidence on this record does not support
a finding that termination of his relationship to H.B. is in the best interests
of the child. As the court found, “[H.B.] loves her Father very, very much.”
The Department child safety specialist testified that H.B. was happy to
speak to Timothy in phone calls and happy to see him on visits, during
which Timothy helped H.B. with homework, encouraged her to practice
positive social skills, and showed “genuine interest and affection.” The
specialist also testified that “it would hurt [H.B.] to not have contact with
her father” and “[i]f the relationship stopped, as far as . . . communication,
her ability to see and talk to her dad, yes, it would hurt.” In fact, the
specialist acknowledged that H.B. sometimes cries at night because she
misses her father. And although the court found “it is likely that current
placement will continue to facilitate maintenance of their relationship,”5

4      The juvenile court combined the best-interests analysis related to J.J.
and H.B. under A.R.S. § 8-533 with the analysis related to Timothy’s
pending motion to change physical custody. Although not inherently
problematic, the overlapping of the court’s analyses of the two issues
complicates our review somewhat, particularly because, although the court
indicates it is addressing Timothy’s motion, it refers to the best-interests
analysis standard set forth by Kent K., which does not address the issue of
placement. Thus, the order is not entirely clear which findings relate to the
best-interests analysis for H.B pursuant to termination or to the physical
custody of H.B. pursuant to Timothy’s motion.

5       The Department specialist testified that H.B.’s current placement
had previously been unwilling “to even supervise H.B.’s phone calls, she
wasn’t really willing to supervise any phone calls for the children. So
[utilizing] the case aide was the only way that we could get visits [to the
children’s fathers] or anything in place.”


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                 TIMOTHY B., MICHAEL M. v. DCS, et al.
                        Opinion of the Court

once the relationship is terminated, neither Timothy nor H.B. will have any
legal right to contact the other. See Titus S. v. Dep’t of Child Safety, 

244 Ariz. 365

, 372, ¶ 29 (App. 2018) (“[Termination] permanently severs [children’s]
relationship to their biological father.”). The juvenile court cited H.B.’s
adoptability and prospective adoptive placement to support its best-
interests finding, but we hold the court is not “free to disregard other
evidence regarding a child’s best interests,” including evidence related to
the parent’s interest in continuing the relationship. Alma S. v. Dep’t of Child
Safety, 

245 Ariz. 146

, 150, ¶ 13 (2018). We therefore vacate the juvenile
court’s finding that termination of the parent-child relationship is in the
best interests of H.B. and remand for reconsideration that includes a proper
balancing of H.B.’s and Timothy’s respective interests. Again, our order in
this regard should not be construed as any indication as to how the juvenile
court should rule on this issue.

¶23            As to the best interests of J.J., Michael argues the court did not
give sufficient weight to his efforts to rehabilitate himself and the bond
between him and J.J. We do not reweigh evidence on appeal. 

A.R., 246 Ariz. at 407

, ¶ 16. As we previously noted, the juvenile court applied the
incorrect standard in the best-interests analysis, and thus it is unclear from
the record whether the court properly considered Michael’s rehabilitative
efforts or other factors related to his admittedly diminished interests.
Regardless of this error, however, sufficient evidence supports the court’s
finding that termination is in J.J.’s best interests. Importantly, J.J., now
fourteen years of age, consented to adoption at the time of trial, see A.R.S.
§ 8-106(A)(3), and, contrary to evidence regarding H.B., the record shows
J.J. “struggle[s] with the idea of permanency,” conversations about her
placement cause her anxiety, and she requires additional support in school.
As the juvenile court found, J.J.’s current placement is meeting her needs
and is willing to adopt J.J. Thus, on this record, we affirm the court’s
finding that termination of the parent-child relationship is in the child’s best
interests.




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                TIMOTHY B., MICHAEL M. v. DCS, et al.
                       Opinion of the Court

                              CONCLUSION

¶24          For the foregoing reasons, we affirm the juvenile court’s order
terminating the parent-child relationship as to Michael, but vacate the order
terminating the parent-child relationship as to Timothy and remand for
further proceedings consistent with this decision.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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