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Brian O. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division, Department E

October 17, 2013

Brian O., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, G.O., F.O., B.O., Appellees.

Not for Publication – Ariz.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

Appeal from the Superior Court in Maricopa County Cause No. JD21172 The Honorable Aimee L. Anderson, Judge

John L. Popilek, P.C. Scottsdale By John L. Popilek Attorneys for Appellant

Thomas C. Horne, Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security

MEMORANDUM DECISION

LAWRENCE F. WINTHROP, Presiding Judge

¶1 Brian O. ("Father") appeals the juvenile court's order terminating his parental rights to G.O., F.O., and B.O. ("the Children"). Father argues that reasonable evidence does not support the statutory ground for termination and that termination was not in the best interests of the Children. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On December 17, 2010, Father was sentenced to five years' incarceration for two counts of attempted sexual assault and one count of kidnapping. Kassandra O. ("Mother") was sentenced on October 4, 2011 to eight months' incarceration for using drugs in violation of probation for a 2008 conviction for domestic violence. Both criminal offenses stemmed from domestic violence against each other. As a result of Mother's arrest and Father's incarceration, the Children lived with their paternal aunt and uncle beginning in September 2011.[1] On December 15, 2011, the guardian ad litem for the Children filed a dependency petition alleging that the Children were dependent as to Father and Mother.[2]

¶3 On January 5, 2012, at the initial dependency hearing, the juvenile court found the Children dependent as to Father and ratified a family reunification case plan, concurrent with an alternative case plan of severance and adoption.[3] On September 24, 2012, ADES moved to terminate Father's parental rights because of his five-year incarceration and in the best interests of the Children, pursuant to Arizona Revised Statutes ("A.R.S.") section 8–533(B)(4) (West 2013).[4] A three-day termination hearing began on March 26, 2013. ADES entered into evidence Father's criminal records, including a conviction for criminal damage related to domestic violence and possession of marijuana in 2006, and his current conviction and five-year incarceration for attempted sexual assault and kidnapping. Mother provided extensive testimony about Father's history of drug abuse and domestic violence, although she testified that the drug use was not constant. Father also provided testimony about his illicit drug use and his sexual assault against Mother. The CPS case manager testified that the Children never had a safe home environment as a result of drug abuse and domestic violence, Father's felony conviction deprived the Children of a normal home for a period of years, and termination of parental rights would be in the best interests of the Children. The case manager also testified that relative placement was available for the Children and that in the alternative the Children were adoptable. At the conclusion of the hearing, the juvenile court terminated Father's parental rights to the Children, finding that ADES proved the statutory ground of incarceration under the Michael J. factors[5] and that termination of parental rights was in the best interests of the Children.

¶4 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, A.R.S. § 8-235(A), and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. Although Father filed his notice of appeal prior the juvenile court filing a signed order finalizing its bench ruling of termination, we maintain jurisdiction. See Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981) ("[A] premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed.").

ANALYSIS

¶5 Father argues that the juvenile court erred when it terminated his parental rights to the Children because of his incarceration for five years. We disagree.

¶6 Because "the juvenile court [is] in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings, " Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987), we will not disturb the juvenile court's order severing parental rights unless its findings are clearly erroneous, meaning no reasonable evidence supports them. Audra T. v. Ariz. Dep't of Econ. Sec, 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). To terminate parental rights pursuant to A.R.S. § 8-533(B)(4), a juvenile court must find, by clear and convincing evidence, "[t]hat 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. § ...


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