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Henry R. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division, Department A

July 2, 2013

HENRY R., Appellant,

(Not for Publication -103(G) Ariz.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

Appeal from the Superior Court in Maricopa County Cause No. JD20277 The Honorable Jay R. Adleman, Commissioner

David W. Bell Mesa Attorney for Appellant.

Thomas C. Horne, Arizona Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellees.


JON W. THOMPSON, Presiding Judge.

¶1 Henry R. (Father) appeals from the juvenile court's order terminating his parental rights to his son (the child).[1] Father argues the court erred because the Arizona Department of Economic Security (ADES) failed to show by clear and convincing evidence that Father's prison sentence was of such length to legally justify the termination of his parental rights. For the following reasons, we affirm.


¶2 Father has a criminal record dating back to 2003 involving felony drug and domestic violence convictions. In October 2010, Father pled guilty to a domestic violence assault charge. Father had probation violations in February and March of 2011, and the March violation was charged as a new offense of one count of possession or use of marijuana. Father again pled guilty to the charge. In April 2011, Father was in jail when Shannon K. (Mother), who was also in jail, gave birth to the child.[3] The child tested positive for methamphetamine at birth. Mother refused to provide any information about potential caregivers, and the identity of Father was not yet known. Consequently, Child Protective Services (CPS) took temporary custody of the child and placed him in a licensed foster home when Mother returned to jail. Shortly thereafter, the child was moved to a kinship placement that was willing and able to adopt the child if reunification was not possible. In July 2011, ADES filed an amended dependency petition naming Father as the child's father and alleging that Father's incarceration prevented him from caring for the child. The juvenile court found the child dependent and approved a case plan of family reunification.

¶3 Father sent postcards to the child's CPS case manager between July and September asking about the child. CPS attempted to take the child to the jail for a visit with Father, but the jail did not permit the visit. Father was released from jail on November 16, 2011, and was assigned a case manager through behavioral health services. The following week, CPS provided him a two-hour visit with the child, and offered weekly two-hour visits thereafter. CPS also offered Father living skills classes along with group therapy, drug testing, psychological evaluation, transportation assistance, health services, and parent-aide services. Father did not participate in the offered services and did not visit the child again after the initial visit.

¶4 Father was again arrested on January 18, 2012, for possession of the dangerous drug methamphetamine. Father pled guilty to the charge, and the superior court sentenced him to two-and-one-half years of incarceration with forty-three days of presentence incarceration credit.[4] After his return to prison, Father did not send any correspondence or gifts to the child, and he never requested additional visits with the child. On August 7, 2012, ADES moved to sever Father's parental rights to the child under Arizona Revised Statutes (A.R.S.) section 8-533(B)(4) (2007) because Father's sentence was of such a length that the child would be deprived of a normal home for a period of years.

¶5 At the severance hearing, CPS case manager Deborah Alyea testified that no bond existed between Father and the child before or since Father's incarceration. She opined that it would be very difficult for Father to nurture a parent-child relationship while in prison, and that Father's incarceration would deprive the child of a normal home because the child would have spent his entire life living and bonding with his foster placement and not Father. Alyea explained that the child had no other parent available to care for him because Mother also remained incarcerated. She also testified that Father had not done anything to change the issues that brought the child into care.

¶6 The juvenile court held that clear and convincing evidence supported severing Father's parental rights due to the length of his sentence and that termination was in the best interests of the child. It found that ADES had made reasonable efforts to reunify the child with his parents and that any further reunification efforts would be futile. Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2012).


¶7 Father argues that: (1) the parent-child relationship could be nurtured while he completes his prison sentence; (2) his prison sentence is not lengthy; and (3) the child has not been ...

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