Charles M. v. Elena K., K.M. ( 2023 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CHARLES M., Appellant,
v.
ELENA K., K.M., Appellees.
No. 1 CA-JV 22-0157
FILED 1-31-2023
Appeal from the Superior Court in Maricopa County
No. JS20902
The Honorable Genene Dyer, Judge Pro Tempore
AFFIRMED
COUNSEL
Thomas Vierling Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Appellees
CHARLES M. v. ELENA K., K.M.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
H O W E, Judge:
¶1 Charles M. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his child, K.M. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Elena K. (“Mother”) are the parents of K.M., born
in 2009. Father abused alcohol and was abusive towards Mother and her
children, but they remained together “on and off” until 2015. During the
relationship, K.M. was a victim of and witnessed Father’s abuse. Mother
phoned police during some of these incidents. Father attended
anger-management classes. In 2015, Mother and K.M. moved to another
state; Father remained in Arizona.
¶3 Soon after the relationship ended, Father petitioned for
parenting time and the court ordered regular phone calls and visits with
K.M. to be supervised by K.M.’s paternal aunt or grandmother. Soon after
that order, K.M. flew to Arizona to visit with Father. She returned very
upset from the visit and disclosed that the paternal relatives were not
supervising her time with Father as the visitation order required. That was
the last time Father saw K.M. in person.
¶4 In 2016, the court modified its order to eliminate Father’s in-
person visits but allowed him regular phone calls and emails. Phone calls
with Father upset K.M. because he often called while intoxicated and would
focus heavily on and speak disrespectfully about Mother rather than focus
on K.M.
¶5 In early 2017, when K.M. was seven years old, Father was
imprisoned on felony charges, including aggravated driving under the
influence. His projected release date was in January 2027. While
imprisoned, he contacted K.M. by phone or email but continued to focus
his conversations on Mother rather than the child, and his relationship with
K.M. did not improve.
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CHARLES M. v. ELENA K., K.M.
Decision of the Court
¶6 In 2019, the court limited his parenting time to emails only.
The next year, K.M. began individual counseling. She was diagnosed with
post-traumatic stress disorder (“PTSD”) and general anxiety disorder, all of
which stemmed from “past trauma she experienced and witnessed at the
hand of her father.” In 2021, Father and K.M. participated in family
counseling for five months, but their relationship did not improve. Around
this time, Mother petitioned to terminate Father’s parental rights under the
length-of-felony-sentence ground. See A.R.S. § 8–533(B)(4). The court held a
trial during which Mother testified that in 2015, K.M. had more parenting
time with Mother than Father. She also testified that in her care, K.M. was
close with her other siblings, responsible for caring for pets, and involved
in community activities. She added that K.M. and Mother’s husband
(“Stepfather”) had a parent-child relationship. Father testified about the
parties’ relationship and that Mother is a “great mother.”
¶7 The court terminated Father’s parental rights. The court made
factual findings under Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
251–52 ¶¶ 28–29 (2000), to determine that his incarceration deprived K.M.
of a normal home with him. Specifically, it found that Mother “ha[d] been
the primary parent for the entirety of the minor child’s life,” and that the
“child ha[d] a normal life that include[d] taking care of family pets,
participating in school activities and spending time with friends and family
members.” Father tried to maintain contact with K.M. during his
incarceration through phone and email, but the court found that he was
“unable to participate in the everyday life of” K.M. and “do the ongoing
work to repair and progress the parental relationship.” The court further
found that Father’s incarceration “prevent[ed] him from having meaningful
therapeutic interactions with [K.M.] that would result in the minor child
wishing to have a relationship with him.” During his brief weekly phone
calls, Father fixated negatively on Mother rather than on K.M.’s wellbeing.
The court noted K.M.’s repeated desire to end her relationship with Father
and be adopted by Stepfather.
¶8 The court also found that Mother proved by a preponderance
of the evidence that termination of Father’s parental rights would be in
K.M.’s best interests. K.M. would benefit from termination because Mother
and Stepfather had been meeting her needs and Stepfather wanted to adopt
her. The court further found that maintaining the parent-child relationship
would be detrimental to K.M. because of Father’s past violence, which
negatively affected her mental health. Father timely appealed.
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Decision of the Court
DISCUSSION
¶9 Father argues that the juvenile court erred in not considering
whether Mother was providing the child with a “normal home” and finding
that termination was in K.M.’s best interests. “We review an order
terminating a parent’s relationship with his or her child . . . in the light most
favorable to sustaining the superior court’s ruling.” Calvin B. v. Brittany B.,
232 Ariz. 292, 296 ¶ 17 (App. 2013). We will affirm unless, as a matter of
law, no reasonable evidence supports those findings. Ariz. Dep’t of Econ. Sec.
v. Rocky J., 234 Ariz. 437, 440 ¶ 12 (App. 2014).
¶10 As a threshold matter, Father asserts that the court’s findings
cannot provide meaningful review because the court failed to expressly
show how it applied each of the termination-ground factors. This court
reviews de novo the sufficiency of the court’s written findings. Ruben M. v.
Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240 ¶ 20 (App. 2012). To comport with
due process, the court’s termination order must be written and signed and
set forth supportive findings of fact for both the termination grounds and
the best-interests determination. A.R.S. § 8–538(A); Logan B. v. Dep’t of Child
Safety, 244 Ariz. 532, 535 ¶ 1 (App. 2018). At a minimum, the juvenile court
must “specify at least one factual finding sufficient to support each of [its]
conclusions of law.” Ruben M., 230 Ariz. at 240 ¶ 22. The purpose behind
this requirement “is to allow the appellate court to determine exactly which
issues were decided and whether the lower court correctly applied the
law.” Id. at 240 ¶ 24.
¶11 Here, the court had to determine whether Father’s felony
sentence was long enough to deprive K.M. of a normal home for a period
of years. A.R.S. § 8–533(B)(4); see Michael J. v Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 251–52 ¶ 29 (2000). In doing so, the court had to
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
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Decision of the 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.
Id.¶12 In its final order, the court made numerous factual findings
under each of the enumerated Michael J. factors and additional factual
findings in a section labeled “[o]ther relevant factors.” It also expressly
concluded that Mother had proved, by clear and convincing evidence, that
Father was convicted of a felony and that the length of his sentence would
deprive K.M. of a normal home for a period of years. Nonetheless, because
the court did not expressly state how it was analyzing each of the factors,
Father contends this court cannot provide effective review. But the juvenile
court was required only to “specify at least one factual finding sufficient to
support each of [its] conclusions of law.” Ruben M., 230 Ariz. at 240 ¶ 22.
The order clearly shows that the court did so here. It made numerous
factual findings about Father’s strained relationship with K.M. and how
their relationship detracts rather than contributes to K.M.’s stable family
environment. See Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 477 ¶ 27
(2022). Thus, the juvenile court’s order is thorough enough to allow this
court to provide effective review. The court therefore did not err.
¶13 The court also did not err in finding that Father’s
incarceration deprived K.M. of a normal home with him. Under A.R.S.
§ 8–533(B)(4), a normal home is “a stable and long-term family environment
outside a foster care placement, where another parent . . . resides and
parents the child, and where the incarcerated parent affirmatively acts to
maintain a relationship with the child that contributes to rather than
detracts from the child’s stable, family environment.” Timothy B., 252 Ariz.
at 477 ¶ 27. A “normal home” does not necessarily require an incarcerated
parent’s presence. Id. at 476 ¶ 24.
¶14 Here, reasonable evidence exists to support the court’s
findings. The court expressly considered that Mother was providing K.M.
with a normal home. It found that she had been K.M.’s primary parent for
her entire life and that K.M. had a normal life that involved “taking care of
family pets, participating in school activities and spending time with
friends and family members.” The court also considered that Father tried
to maintain contact with K.M. during his incarceration through phone and
email.
¶15 Nevertheless, the court made many findings implying that
Father’s relationship with K.M. detracts from rather than contributes to her
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Decision of the Court
stable, family environment. For example, the court found that Father was
unable to participate in K.M.’s everyday life and “do the ongoing work to
repair and progress the parental relationship.” His incarceration
“prevent[ed] him from having meaningful therapeutic interactions with
[K.M.] that would result in the minor child wishing to have a relationship
with him.” His brief weekly phone calls could not repair their strained
parent-child relationship. The court found that Father squandered his time
with K.M. by fixating negatively on Mother rather than on K.M.’s
wellbeing. The court noted K.M.’s repeated desire to end her relationship
with Father and be adopted by Stepfather.
¶16 Moreover, the record supports the court’s finding that after
some phone calls with Father, K.M. was visibly upset and cried; she felt he
was not truly interested in their relationship based on his fixation with
Mother. Due to their strained relationship, K.M. was unable to share her
feelings with him during family counseling. Her individual counselor
diagnosed her with generalized anxiety disorder and found her symptoms
consistent with PTSD, stemming from past trauma she experienced from
Father. Considering the court’s comprehensive findings and the supportive
evidence in the record, the juvenile court did not misapply the term
“normal home.” Cf. Timothy B., 252 Ariz. at 477 ¶ 28 (holding the juvenile
court erred by “ground[ing] its ruling on only [the incarcerated parent’s]
inability to be physically present in [the child’s] home”).
¶17 Father further asserts that the juvenile court erred by not
finding that Mother persistently and substantially restricted his access to
K.M. under Calvin B., 232 Ariz. 292. But Calvin B. is inapplicable here
because Mother did not petition to terminate his parental rights based on
abandonment. See id. at 293–94 ¶ 1 (holding that “a parent who has
persistently and substantially restricted the other parent’s interaction with
their child may not prove abandonment based on evidence that the other
has had only limited involvement with the child”). Further, Father moved
to enforce his parenting time in family court and was able to raise his
grievances with Mother’s compliance to the visitation orders there.
¶18 Father cites Jessie D. v. Dep’t of Child Safety, 251 Ariz. 574(2021), and Alyssa W. v. Justin G., 245 Ariz. 599 (App. 2018), to argue that
the court erred in not determining whether Mother made diligent efforts to
provide him services for maintaining a bond with K.M. But Jessie D. is
inapplicable because it does not extend to private petitioners. See 251 Ariz.
at 582 ¶ 21 (holding that Department of Child Safety must make reasonable
efforts to provide incarcerated parent services upon request, “providing the
services will not endanger the child”). Alyssa W. is also inapplicable because
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Decision of the Court
Mother did not seek termination based on chronic substance abuse. See 245
Ariz. at 602 ¶ 13 (holding that a private petitioner seeking termination
under the chronic substance-abuse ground must show “that services were
offered, but the parent’s [substance] abuse was not amendable to
rehabilitative services, or that providing such services would be pointless”).
Further, the Alyssa W. court clarified that a private party, who often lacks
the resources available to the State, need not “herself have offered or
provided” the services. Id. at 602 ¶ 14. Regardless, even if Mother was
required to show that some form of visitation was available to Father, she
has done so here. Both parents testified that the court granted Father
varying degrees of parenting time with K.M., even during his incarceration.
Therefore, the court did not err.
¶19 Finally, Father contends the juvenile court’s finding that
termination was in K.M.’s best interests is clearly erroneous because her life
would not change if termination were denied. In addition to finding a
statutory ground for termination, the juvenile court must also determine
what is in the best interests of the child by a preponderance of the evidence.
Kent K., 210 Ariz. at 284 ¶ 22. Once the court finds a parent unfit under at
least one statutory ground for termination, “the interests of the parent and
child diverge,” and the court proceeds to balance the unfit parent’s “interest
in the care and custody of his or her child . . . against the independent and
often adverse interests of the child in a safe and stable home life.” Id. at 286
¶ 35. “[A] determination of the child’s best interest must include a finding
as to how the child would benefit from a severance or be harmed by the
continuation of the relationship.” Maricopa Cnty. Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). Courts “must consider the totality of the circumstances
existing at the time of the severance determination, including the child’s
adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 148 ¶ 1 (2018).
¶20 The court may find that a child would benefit from
termination if an adoption plan exists or the child is adoptable, id. at 150–
51 ¶¶ 13–14, or if the child “would benefit psychologically from the stability
an adoption would provide,” Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 352 (App. 1994). Conversely, the court may find a child would be
harmed by the continuation of the parent-child relationship where “clear
and convincing evidence of parental unfitness” exists, “which has not been
remedied notwithstanding the provision of services by [DCS] and which
detrimentally affects the child’s well-being.” Pima Cnty. Juv. Action No.
S-2460, 162 Ariz. 156, 158 (App. 1989).
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CHARLES M. v. ELENA K., K.M.
Decision of the Court
¶21 Here, reasonable evidence supports the court’s finding that
termination was in K.M.’s best interests. The juvenile court found that she
would benefit from termination because Mother and Stepfather had been
meeting her needs and Stepfather wanted to adopt her. He had been K.M.’s
father figure for more than five years. The court further found that
maintaining the parent-child relationship would be detrimental to K.M.
because of Father’s past violence, which negatively affected her mental
health. The record supports these findings and establishes how K.M.’s life
would indeed change with the termination of Father’s parental rights.
CONCLUSION
¶22 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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