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Douglas T. v. Arizona Department of Economic Security, A.D.

Court of Appeals of Arizona, First Division, Department C

June 25, 2013

DOUGLAS T., Appellant,

Not for Publication – Ariz.R.P.Juv.Ct. 103(G); ARCAP 28

Appeal from the Superior Court in Maricopa County Cause Nos. JD11174; JS11958 The Honorable Cari A. Harrison, Judge

John L. Popilek P.C. John L. Popilek Attorney for Appellant.

Thomas C. Horne, Attorney General Carol A. Salvati, Assistant Attorney General Attorneys for Appellees,



¶1 Douglas T. ("Father") appeals termination of his parental rights to his biological child A.D. ("Child"). For the following reasons, we affirm.


¶2 Child was born in January 2012 while Father was serving a two-and-one-half-year prison sentence for possession of dangerous drugs. At Child's birth, both Child and her mother ("Mother") tested positive for amphetamine. Consequently, Child Protective Services ("CPS"), a division of the Arizona Department of Economic Security ("ADES"), removed Child from Mother's care and took temporary physical custody. CPS provided Father with a paternity test, which confirmed he was Child's father. ADES then filed a dependency petition alleging that Child was dependent because of neglect by Mother due to her substance abuse and by Father due to his incarceration. The juvenile court found the child dependent to both parents.

¶3 On February 6, 2012, ADES filed a petition to terminate Mother's and Father's parental rights. Mother did not contest the petition, and the court severed her parental rights. In its petition regarding Father, ADES argued the court should sever Father's parental rights under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(4) (West 2013), [2] which provides for severance of a parent-child relationship 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." ADES also argued that severing Father's parental rights was in the child's best interests.

¶4 The juvenile court heard ADES's petition on November 9, 2012. At the time of the hearing, Father was in prison. His earliest projected release date was in September of 2013, and his latest projected release date was in January of 2014. Father admitted that he had never seen Child, who was then ten months old; had never supported her financially, although he had supported his other children; had never given her any gifts; and had never done anything to establish a parental relationship with her. Moreover, Father had never contacted CPS to request visits with Child or even to ask about her welfare.

¶5 The CPS case manager testified that Child had been placed in the same foster home with her three half-siblings on Mother's side since she was three days old. She testified that Child was adoptable, her placement was willing to adopt her, and she had developed a bond to her placement and her three half-siblings. In fact, "[t]he siblings enjoy having their little sister around[, and] [t]hey will check on her when she starts to cry to ensure that she is okay." The case manager testified that severing Father's parental rights was in Child's best interests because it would afford her with "permanenc[e] and a normal life." Although ADES had investigated Child's paternal grandmother as a possible placement, she was not available at the beginning of the case. Moreover, the case manager was concerned about the grandmother's difficulty in maintaining contact with CPS because she kept calling the previous case manager.

¶6 Father attempted to cross-examine the case manager about the possibility of placing Child with the paternal grandmother. The State objected to the question because it dealt with a placement issue, not a severance issue. Father asserted the question went to Child's best interests. The court sustained the objection. After the State rested, Father called the paternal grandmother as a witness. The court allowed the paternal grandmother to testify but reminded Father that it would not allow any testimony about potential placement for Child.

¶7The juvenile court severed Father's parental rights. The court found that ADES had proven, by clear and convincing evidence, the statutory grounds under A.R.S. ยง 8-533(B)(4) and, by a preponderance of the evidence, that severance of Father's parental rights was in Child's best interests. In finding ADES had proven the statutory grounds, the court found that Father did not have a parental relationship with Child before incarceration; that establishing a bond during his incarceration would be difficult because of Child's age; that Father had been incarcerated since August 31, ...

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