Jessi N., Ryan J. v. Dcs ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESSI N., RYAN J., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, D.C., S.J., Appellees.
No. 1 CA-JV 19-0130
FILED 2-4-2020
Appeal from the Superior Court in Maricopa County
No. JD38029
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Jessi N.
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Ryan J.
Arizona Attorney General’s Office, Phoenix
By Doriane F. Zwillinger
Counsel for Appellee Department of Child Safety
JESSI N., RYAN J. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Acting
Presiding Judge David D. Weinzweig and Chief Judge Peter B. Swann
joined.
G A S S, Judge:
¶1 Ryan J. (father) appeals the superior court’s order terminating
his parental rights to S.J., his biological child. Jessi N. (mother) also appeals
the superior court’s order terminating her parental rights to two biological
children, S.J. and D.C. (collectively, the children). Because reasonable
evidence supports the superior court’s order, the termination of parental
rights is affirmed.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and mother have a long history of substance abuse.
Father also has a criminal history predating S.J.’s birth. In 2014, D.C. was
born substance exposed. The superior court adjudicated D.C. dependent. In
April 2015, after Mother successfully completed standard outpatient
substance-abuse treatment, the Department of Child Safety (DCS)
dismissed that earlier dependency.
¶3 During mother’s pregnancy with S.J., mother abused
substances. Father did as well, even though he was on probation for
burglary of a pharmacy. Father says he was with mother throughout her
pregnancy and was present for S.J.’s birth, but he denied knowing mother
was abusing drugs. When S.J. was born in 2017, mother and S.J. both tested
positive for methamphetamine. Within two days of S.J.’s birth, father’s hair
follicle test was positive for methamphetamine, amphetamine, morphine,
and heroin.
¶4 About three months after S.J.’s birth, the superior court found
father violated his probation and ordered him held in the Maricopa County
Jail for forty-five days. After forty-five days, father was released to
Crossroads, a substance-abuse treatment facility. He remained on
probation. After father’s release from Crossroads, he continued to engage
in criminal activities related to his substance abuse.
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JESSI N., RYAN J. v. DCS, et al.
Decision of the Court
¶5 In March 2017, DCS began dependency proceedings against
both parents as to S.J. and against mother as to D.C. The superior court
adjudicated the children dependent as to mother in June 2017. DCS
implemented an in-home dependency with mother and the children living
with the children’s maternal grandmother. S.J. was adjudicated dependent
as to father in September 2017. Because mother continued to test positive
for methamphetamine and amphetamine, DCS terminated the in-home
dependency and placed the children in maternal grandmother’s physical
custody.
¶6 In January 2018, father was charged with dangerous drug
possession and held at the Maricopa County Jail. He ultimately pled guilty.
On November 26, 2018, the criminal court sentenced father to concurrent
terms on the 2014 burglary charge and the 2018 dangerous drug possession
charge. Father has been incarcerated since that time. Father’s earliest release
date on those sentences was November 14, 2019; his latest release date is
May 26, 2020.
¶7 In November 2018, DCS moved to terminate father’s parental
rights under A.R.S. § 8-533(B)(4) on the grounds of length of incarceration
and fifteen months-in-care. DCS also moved to terminate mother’s parental
rights on the grounds of chronic substance abuse, nine months’ in care, and
fifteen months’ in care. The superior court held a contested severance trial.
The superior court ordered severance on March 12, 2019. Mother moved to
set aside the superior court’s severance ruling, which the superior court
denied.
¶8 In April 2019, the superior court issued a final signed order
finding DCS proved all grounds against father and mother by clear and
convincing evidence. The superior court also found terminating parental
rights was in the children’s best interests. The superior court’s initial ruling
contained an error, so the superior court issued a nunc pro tunc order
correcting the error in July 2019. Father and mother timely appealed. Father
challenges the grounds for severance and the best-interests finding. Mother
does not challenge the basis for the severance but argues the superior court
erred in finding the severance was in the children’s best interests.
ANALYSIS
¶9 A superior court may sever a parent’s rights if clear and
convincing evidence establishes at least one statutory ground. See A.R.S.
§ 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); see also Michael
J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). The superior
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JESSI N., RYAN J. v. DCS, et al.
Decision of the Court
court also must find by a preponderance of the evidence termination is in
the best interests of the child. See Kent K., 210 Ariz. at 288, ¶ 41. Because the
superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” this
court will affirm an order terminating parental rights if reasonable evidence
supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (citations omitted).
I. Reasonable evidence establishes termination of father’s parental
rights as to S.J. was proper.
¶10 A parent’s rights may be terminated when “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.” A.R.S. § 8-533(B)(4). In assessing such a claim,
the superior court should consider “all relevant factors,” including:
(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.
Michael J., 196 Ariz. at 251-52, ¶ 29. The superior court should consider each
factor, but the absence of evidence on any one factor does not prevent a
severance based on length of incarceration. See Christy C. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 445, 450, ¶ 15 (App. 2007).
¶11 No one factor in the record is dispositive, but when taken
together, they establish reasonable evidence to support the superior court’s
termination of father’s rights. See Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz.
437, 441, ¶ 17 (App. 2014). The record establishes father was first
incarcerated shortly after S.J.’s birth. S.J. was less than a year old when
father was incarcerated the second time. During his initial release from jail
until his second incarceration, father had a total of nine in-person visits with
S.J. In those visits S.J., an infant, only slept and ate. Father slept through
some visits as well. Because of father’s incarceration, he has no relationship
to continue with S.J. after his release. See Jeffrey P. v. Dep’t of Child Safety, 239
Ariz. 212, 215, ¶ 14 (App. 2016). Additionally, father still needs to resolve
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JESSI N., RYAN J. v. DCS, et al.
Decision of the Court
his substance abuse issues before DCS could consider anything more than
resuming supervised visits of the type he had before he was incarcerated.
¶12 During father’s incarceration, S.J. had no other parent to
provide her a normal home life. Mother continued in her own struggles
throughout the dependency. Mother did not complete any services and has
not had custody of S.J. since father was incarcerated in 2017. Because of
father’s incarceration, S.J. is not bonded with him. He has not been able to
help S.J. with her emotional and behavioral issues. Father has not been able
to provide for her basic needs.
¶13 Father’s incarceration undermined any relationship he might
have had with S.J. and prevented him from providing for her needs. See
Jeffrey P., 239 Ariz. at 215, ¶ 14; Rocky J., 234 Ariz. at 441, ¶ 17; Christy C., 214
Ariz. at 450, ¶ 15. Though father’s sentence was only 2.25 years, that length
amounts to most of S.J.’s life. Despite father’s pending release, the issue is
how long he has been absent, not how long he has until his release. See Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 281, ¶ 8 (App. 2002).
¶14 Reasonable evidence supports the superior court’s order
terminating father’s parental rights as to S.J. Accordingly, this court need
not reach father’s challenge to the superior court’s findings regarding S.J.’s
fifteen months’ in care.
II. Reasonable evidence establishes termination was in the children’s
best interests.
¶15 In addition to proving grounds exist for termination, DCS
must prove by a preponderance of the evidence terminating a parent’s
rights would be in the child’s best interests. A.R.S. § 8-533(B); Maricopa Cty.
Juv. Action No. JS-500274, 167 Ariz. 1, 4 (1990). If a superior court has found
the existence of a statutory ground for termination, the superior court “can
presume that the interests of the parent and child diverge.” Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018) (quoting Kent K., 210 Ariz. at
286, ¶ 35).
¶16 When reasonable evidence supports severance, a child’s
“interest in stability and security” is the superior court’s main concern. See
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016) (quoting Kent K., 210
Ariz. at 286, ¶ 34). One factor is the bond between the parent and the child.
Father has virtually no bond with S.J. Mother has a stronger bond with D.C.
than with S.J., but the bond with both children is weak because of her
ongoing absence from their lives.
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JESSI N., RYAN J. v. DCS, et al.
Decision of the Court
¶17 Having extended family members, particularly a
grandparent, supports a best-interests finding. A.R.S. § 8-514(B)(2).
Maintaining sibling relationships also is a factor supporting a best-interests
finding. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 378, ¶ 6 (App.
1998). Maternal grandmother currently has both children, is available as an
adoptive home for both, and is meeting their needs. She stands in first
preference as a placement. This factor shows the termination is in the
children’s best interests, because it would allow the children to secure
permanency together. See id. Maternal grandmother also is well positioned
to maintain the children’s relationship with extended family members,
including paternal family members.
¶18 If maternal grandmother cannot adopt the children for any
reason, DCS has a plan in place. Both children are loving, caring, and
adoptable. DCS proved their adoption is likely, and they likely would be
adopted together. See Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 370-71,
¶ 22 (App. 2018) (“When . . . the child’s prospective adoption is otherwise
legally possible and likely, a superior court may find that termination of
parental rights, so as to permit adoption, is in the child’s best interests.”).
CONCLUSION
¶19 Father failed to show the superior court’s findings were not
supported by trial evidence or otherwise were an abuse of discretion.
Further reasonable evidence supports the superior court’s order
terminating father’s and mother’s parental rights based on the children’s
best interests. The superior court’s order terminating father’s parental
rights to S.J. and mother’s parental rights to the children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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