Harley D. v. Amanda C., L.C. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
HARLEY D., Appellant,
v.
AMANDA C., L.C., Appellees.
No. 1 CA-JV 15-0373
FILED 5-24-2016
Appeal from the Superior Court in Yavapai County
No. P1300SV201500017
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Stephen R. Jones, Attorney at Law, Mesa
By Stephen R. Jones
Counsel for Appellee Amanda C.
HARLEY D. v. AMANDA C., L.C.
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.
G O U L D, Judge:
¶1 Harley D. (“Father”) appeals from the juvenile court’s order
terminating his parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born in February 2009. Father was present for her
birth and helped care for Child until he was sentenced to prison in May
2010. During Father’s incarceration, Child's mother, Amanda C.
(“Mother“) brought Child to the prison for regular visits; this continued
until his release in July 2012. However, once Father was out of custody, he
did not actively maintain his relationship with Child. Despite Mother’s
encouragement, Father did not regularly visit or call Child, nor did he
provide support for Child.
¶3 In September 2013, Father ceased all visitation with Child and
stopped responding to texts and phone calls from Mother. He did not
attempt to reestablish his relationship with Child until July 2014, when he
was sentenced to prison for aggravated assault with a deadly weapon or
dangerous instrument, a class three, dangerous felony. Father’s earliest
release date for this offense is October 2018, and his latest release date is
February 2019.
¶4 In May 2015, Mother filed a petition to sever Father’s parental
rights. In her petition, Mother alleged several grounds for severance,
including Father’s incarceration. Ariz. Rev. Stat. (“A.R.S.”) section 8-
533(B)(4).1 Before trial, Father pled no contest to severance on the grounds
of incarceration, but advised the court he was contesting the allegation that
termination was in the best interests of Child. The court found the plea of
no contest was made knowingly, intelligently and voluntarily.
1 Mother alleged other grounds in her petition; however, these
grounds were not addressed at trial.
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HARLEY D. v. AMANDA C., L.C.
Decision of the Court
¶5 Following trial, the juvenile court granted Mother’s petition
and terminated Father’s parental rights. Father timely appeals.
DISCUSSION
I. Statutory Grounds for Severance
¶6 Father argues Mother failed to prove incarceration as a
grounds for severance. Pursuant to A.R.S. § 8-533(B)(4), a person’s parental
rights can be terminated if:
the parent is deprived of civil liberties due to the conviction of a
felony . . . if the sentence of that parent is of such length that the
child will be deprived of a normal home for a period of years.
¶7 Here, Father pled no contest to severance on the statutory
grounds of incarceration. See Ariz. R.P. Juv. Ct. 66(D)(1) (stating a parent
“may waive the right to trial on the allegations contained in the motion or
petition for termination of parental rights by admitting or not contesting
the allegations.”). Father does not contest the fact he entered the plea
knowingly, intelligently and voluntarily, or that the juvenile court made the
requisite findings. See Ariz. R.P. Juv. Ct. 66 (D)(1)(d), (F)(2) (required
findings). Instead, Father argues insufficient evidence supports
termination based on incarceration. Thus, our review is confined to whether
a factual basis supports the termination of his parental rights. Ariz. R.P.
Juv. Ct. Rule 66(D)(1); Tina T. v. Dep’t of Child Safety, B.H., 236 Ariz. 295, 298-
99, ¶¶ 15-16 (App. 2014).
¶8 In terminating a parent’s rights based on incarceration, “the
length of a parent’s sentence is not dispositive”; rather, “the juvenile court
must consider the many facts and circumstances specific to each case.” Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 281, ¶ 9 (App. 2002). These
factors include:
(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.
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HARLEY D. v. AMANDA C., L.C.
Decision of the Court
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29 (2000).
¶9 A sufficient factual basis supports Father’s plea and the
juvenile court’s termination order. The juvenile court found Mother proved
by clear and convincing evidence Father was deprived of his civil liberties
due a felony conviction. Father testified he was currently incarcerated for
this conviction, and that his earliest release date was October 2018.
¶10 The record also shows that Father does not have a strong
relationship with Child. Father has been incarcerated for about half of
Child’s life, and his current incarceration will continue for a minimum of
two more years. At the time of the severance trial, Father had not
participated in visitation with Child for over a year; indeed, he had not seen
her in two years. In addition, a court order is in place preventing Child
from physically visiting Father because of the emotional hardship it may
cause her. Before this order can be lifted, Father is required to take a
parenting class. However, Father has not taken the required parenting class
to remove this restriction.
¶11 Accordingly, we affirm the juvenile court’s finding proof to
support termination due to incarceration.
II. Best Interests
¶12 Father also argues the termination of his parental rights is not
in Child’s best interest.
¶13 Before a juvenile court may terminate a parent’s rights it must
find severance is in the best interests of the child. A.R.S. § 8-533(B).
Whether severance is in the child’s best interests is a question of fact for the
juvenile court to determine. In re Maricopa Cty. Juvenile Action No. JS–
501904, 180 Ariz. 348, 352 (App. 1994). We view the evidence, and draw all
reasonable inferences from it, “in favor of supporting the findings of the
trial court.” In re Maricopa Cty. Juvenile Action No. J–75482, 111 Ariz. 588,
591 (1975). We have held “the best interests of the child . . . may be
established by either showing an affirmative benefit to the child by removal
or a detriment to the child by continuing in the relationship.” Jennifer B. v.
Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 557 (App. 1997); see also In re Maricopa
Cty. Juvenile Action No. JS–500274, 167 Ariz. 1, 5 (1990).
¶14 Reasonable evidence supports the juvenile court’s finding
that termination is in Child’s best interests. The record shows Father is an
unstable parental figure in Child’s life. He has been in and out of prison for
about half of her life, and has not consistently developed and maintained a
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HARLEY D. v. AMANDA C., L.C.
Decision of the Court
stable relationship with her. The juvenile court found termination would
provide Child safety and stability and prevent her from being exposed to
the turmoil caused by Father’s ongoing cycle of recidivism and
imprisonment. We find no error.
CONCLUSION
¶15 For the reasons above, we affirm the juvenile court’s
termination of Father’s parental rights.
:ama
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