Bisono E. v. Dcs, I.W. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BISONO E., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, I.W., Appellees.
No. 1 CA-JV 22-0059
FILED 3-7-2023
Appeal from the Superior Court in Maricopa County
No. JD36969
The Honorable David O. Cunanan, Judge Retired
AFFIRMED
COUNSEL
Thomas Vierling Attorney at Law, Phoenix
By Thomas Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
BISONO E. v. DCS, I.W.
Decision of the Court
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the court, in which
Presiding Judge Maria Elena Cruz and Judge James B. Morse, Jr. joined.
P A T O N, Judge:
¶1 Bisono E. (“Father”) appeals the superior court’s order
terminating his parental rights as to I.W. Father argues the court (1) erred
in finding that the Department of Child Safety (“DCS”) made diligent
efforts at reunification and (2) failed to consider whether another person
was willing to be I.W.’s permanent guardian during his incarceration. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Savanna W. (“Mother”) are the biological parents
of I.W., who was born in March 2017. In January 2019, Father was arrested
after committing several burglaries and subsequently sentenced to four
years in prison. Mother and Father were later convicted of burglary charges
in Texas and sentenced to a maximum of 15 years in prison, to run
concurrently with Father’s sentence in Arizona. Father acknowledged that
upon his release from prison in Arizona, he will be transferred to Texas to
serve additional time.
¶3 Five days after Mother and Father’s arrest, DCS filed a
dependency petition alleging that Mother and Father could not provide
proper and effective parental care and control because of their
incarceration. Both parents entered no contest pleas as to the allegations
against them in the dependency petition.
¶4 In January 2022, DCS moved to terminate Mother and
Father’s parental rights as to I.W., alleging that both Mother and Father
were serving sentences that would deprive I.W. of a normal home for a
period of years and that termination was in the child’s best interests. See
A.R.S. § 8-533(B)(4).
¶5 Mother pled no contest to the allegations against her in the
termination petition. Father contested the termination, and after a hearing,
the court terminated his parental rights, finding by clear and convincing
evidence that Father’s sentence was of a sufficient length to deprive I.W. of
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Decision of the Court
a normal home for a period of years and that termination was in the child’s
best interests.
¶6 Father timely appealed, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) Section 8-235(A). On appeal, Father
does not challenge the length of his sentence for termination; he only
contests the superior court’s normal home and reasonable reunification
efforts findings.
DISCUSSION
¶7 Parents have a fundamental right to the care and custody of
their children. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). But this
right is not absolute, and a court may terminate “parental rights under
certain circumstances, so long as the parents whose rights are to be severed
are provided with ‘fundamentally fair procedures’ that satisfy due process
requirements.” Id. (citation omitted).
¶8 To terminate the parent-child relationship, DCS must prove
by clear and convincing evidence at least one statutory ground for
termination and prove by a preponderance of the evidence that termination
is in the child’s bests interests. A.R.S. § 8-537(B); Kent K., 210 Ariz. at 284,
¶ 22. We review a termination order for an abuse of discretion. Jessie D. v.
Dep’t of Child Safety, 251 Ariz. 574, 579, ¶ 10 (2021). A court abuses its
discretion when it misapplies the law. Timothy B. v. Dep’t of Child Safety, 252
Ariz. 470, 474, ¶ 14 (2022).
I. Reasonable evidence supports the superior court’s finding that
DCS made sufficient reunification efforts.
¶9 Father argues the court erred in finding that DCS made
diligent efforts at reunification. Incarcerated parents “still possess a
fundamental liberty interest in the care, custody, and management of their
children.” Jessie D., 251 Ariz. at 581, ¶ 20; see also Santosky v. Kramer, 455
U.S. 745, 753 (1982). DCS, however, is not required “to provide every
conceivable service or to ensure that a parent participates in each service it
offers.” Maricopa Cnty. Juv. Action No. JS–501904, 180 Ariz. 348, 353 (App.
1994). Instead, “DCS must make reasonable efforts to provide
[reunification] services.” Jessie D., 251 Ariz. at 582, ¶ 21.
¶10 The record demonstrates that Father sent I.W.
approximately forty postcards while incarcerated, and DCS confirmed that
I.W. received them. DCS also facilitated one telephonic visit between
Father and I.W. in 2020 when Father was unable to receive in-person visits
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Decision of the Court
due to a disciplinary infraction and COVID-19 visitation restrictions
implemented by the prison.
¶11 DCS also encouraged Father to participate in services while
incarcerated. Indeed, Father participated in AA meetings, the Step Study
Program, and the Motivated to Change Program. In July 2020, Father was
transferred to Texas to address pending charges, but continued to send I.W.
letters. Father returned to Arizona in August 2021 and requested visitation
with I.W. DCS again sought and received a visitation order from the court
and attempted to provide Father with a case aide to facilitate the visits. But
due to a waitlist and because of the pending termination petition, Father
did not have any visits with I.W. Nevertheless, on this record, DCS made
reasonable efforts to provide Father with reunification services.
II. Sufficient evidence supports the superior court’s finding that
Father’s incarceration would deprive I.W. of a normal home.
¶12 Father next argues the court erred in finding that his sentence
will deprive I.W. of a “normal home” under Section 8-533(B)(4) because the
court failed to consider whether another person was willing to serve as
I.W.’s permanent guardian during Father’s incarceration.
¶13 In Timothy B., our supreme court held that before terminating
a parent’s rights on length-of-incarceration grounds, the superior court
must first consider whether another adult is willing to serve as the child’s
permanent guardian during the parent’s incarceration. Timothy B., 252
Ariz. at 477, ¶ 27. If a viable guardian exists, the court must then consider
“whether the incarcerated parent [can] contribute to rather than detract
from the stable, family environment provided by the permanent guardian
during incarceration.” Id. (interpreting the meaning of “normal home” in
A.R.S. § 8-533(B)(4)).
¶14 DCS first contacted I.W.’s maternal great aunt and uncle, both
of whom declined to be the child’s temporary placement. DCS next
contacted two kinship placements in Oklahoma, but Oklahoma determined
neither placement option was suitable. DCS then contacted all of I.W.’s
known relatives (over fifty) to see if any of them could serve as his
temporary placement but none of his relatives responded. It logically
follows that if nobody with whom I.W. had a significant relationship was
willing to serve as his temporary placement, none of them were available
to serve as his permanent guardian. Based on DCS’s unsuccessful attempts
to find a placement for I.W., the superior court found that I.W. was “not
placed with a grandparent or another member of [his] extended family
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Decision of the Court
including a person who has a significant relationship with that child, which
is in his best interests, because DCS is unaware of any such person who is
willing, able, and/or appropriate to care for the child.”
¶15 Even if the court failed to consider the availability of a
permanent guardian for I.W., termination was still appropriate because the
second Timothy B. factor is not met here: Father could not contribute to a
stable family environment for the child. In Timothy B., the child’s father
contributed to the stability of his child’s environment during his
incarceration and made “extraordinary and laudable” efforts to maintain
regular contact and a “strong bond” with his child. Timothy B., 252 Ariz. at
473, ¶¶ 7-9. Those efforts included “regular visits” with his child, “helping
with homework” and exchanging “cards, gifts, letters, poetry and
drawings” with her. Id.
¶16 Conversely here, Father recognized he could not contribute to
a “normal home” environment for I.W. He admitted he did not know his
son’s exact birthday and age, and that he had no contact with I.W. since his
incarceration in 2019. Father testified that, because of his incarceration, he
“can’t help [I.W.] with nothing” and he did not have a “normal
parent/child relationship” with I.W. during his incarceration because he
“was never there.” Sufficient evidence supports the superior court’s
finding that Father’s incarceration would deprive I.W. of a normal home.
CONCLUSION
¶17 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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