Trevor M. v. Dcs ( 2016 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TREVOR M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.C., T.C., Appellees.
No. 1 CA-JV 16-0187
FILED 12-6-2016
Appeal from the Superior Court in Mohave County
No. B8015JD201404066
The Honorable Rick A. Williams, Judge
REVERSED AND REMANDED
COUNSEL
Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee
TREVOR M. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Chief
Judge Michael J. Brown and Judge Donn Kessler joined.
O R O Z C O, Judge:
¶1 Trevor M. (Father) appeals the court’s termination of his
parental rights to T.C. and Ty.C. (the children). On appeal, Father argues
that (1) he was not provided adequate reunification services and (2) the
court abused its discretion in finding Father’s incarceration as grounds for
severance. The Arizona Department of Child Safety (DCS) responded, and
agreed the juvenile court erred in terminating Father’s rights based on
length of sentence. DCS requests this court “reverse the termination order
and remand to the juvenile court for further proceedings.” We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and the Arizona Revised Statutes (A.R.S.) sections 8-235.A, 12-120.21.A.1
and -2101.A (West 2016).1
¶2 Under A.R.S. § 8-533.B.4, a parent’s rights can be terminated
when the parent “is deprived of civil liberties due to conviction of a felony”
and the length of the sentence is such “that the child will be deprived of a
normal home for a period of years.” (Emphasis added.). There is no “bright
line” definition of the length of time required to deprive a child of a normal
home, Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 29 (2000);
however, the utilization of present tense language in the statute requires a
parent to be deprived of civil liberties, depriving the child of a normal
home, at the time of severance. See State v. Gomez, 212 Ariz. 55, 61, ¶ 35 (2006).
¶3 At the time dependency proceedings were initiated, Father
was incarcerated. DCS later moved for termination of Father’s rights in
September 2015, alleging length of incarceration as the exclusive grounds
for severance. Father was released from custody on March 24, 2016 and a
contested severance hearing was held on April 8, 2016. Father appeared
and testified on his own behalf. The court interpreted Michael J. to allow it
to sever parental rights based solely on length of incarceration, even if the
1 We cite to the current version of applicable statutes absent any
change material to this decision.
2
TREVOR M. v. DCS et al.
Decision of the Court
parent facing severance has been released from custody. We disagree that
A.R.S. § 8-533.B.4 permits severance when, as here, the parent has been
released from custody, and there are no other grounds for severance
alleged.
¶4 Because there is no evidence to sustain the court’s ground for
severance, we need not review the adequacy of services offered to Father.
We reverse the court’s determination and remand for further proceedings
consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
3