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Kyle B. v. Department of Child Safety

Court of Appeals of Arizona, Second Division

October 13, 2015

Kyle B., Appellant,
v.
Department of Child Safety and A.B., Appellees.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. JD20140114 The Honorable Jane Butler, Judge Pro Tempore

Scott W. Schlievert, Tucson Counsel for Appellant

Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety

Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Miller and Judge Espinosa concurred.

MEMORANDUM DECISION

ECKERSTROM, CHIEF JUDGE.

¶1 Kyle B. appeals from the juvenile court's May 2015 order terminating his parental rights to his son, A.B., born in April 2009, on length-of-incarceration and time-in-care grounds. See A.R.S. § 8-533(B)(4), (8)(a). Because A.B. is an "Indian child, " these proceedings are subject to the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963. See 25 U.S.C. § 1903(4) (defining "'Indian child'"). Kyle contends there was insufficient evidence to support the court's termination order under either ground. Finding no error, we affirm.

¶2 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of one of the statutory grounds for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 22, 41, 110 P.3d 1013, 1018, 1022 (2005). We will not disturb a court's severance order unless the factual findings upon which it is based "are clearly erroneous, that is, unless there is no reasonable evidence to support them." Audra T. v. Ariz. Dep't of Econ. Sec, 194 Ariz. 376, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the [juvenile] court's decision ..... Jordan C. v. Ariz. Dep't of Econ. Sec, 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009).

¶3 The Department of Child Safety (DCS)[1] took temporary custody of then-four-year-old A.B. in February 2014 based on a report that the mother, who was "severely intoxicated, smelled of alcohol, slurred her words and was stumbling as she tried to walk and actually fell down once, " had left A.B. unattended at the Tucson Public Library.[2] Kyle, whose whereabouts were unknown at the time, had been inconsistently involved in A.B.'s life. Kyle was served with a dependency petition in Indiana in May 2014, and although he returned to Arizona in August 2014, he refused to participate in case-plan services here. In November 2014, after A.B. had been in DCS custody for almost nine months, Kyle was incarcerated as a result of a robbery offense.

¶4 The juvenile court adjudicated A.B. dependent as to Kyle at a November 2014 dependency hearing. In January 2015, the court changed the case plan goal to severance and adoption, and DCS filed a motion to terminate Kyle's parental rights to A.B. in February 2015 based on length-of-incarceration and time-in-care grounds. See § 8-533(B)(4), (8)(a). At a May 2015 termination hearing, Kyle testified he had been convicted of robbery and sentenced to 1.5 years' imprisonment.[3] The maternal grandmother, who wants to adopt A.B. and has cared for him for "[m]ost of his life, " testified that Kyle had not provided support for A.B. or maintained "regular[]" contact with him.

¶5 The case manager for the Tohono O'odham Nation opined that placing A.B. in Kyle's custody "would likely result in serious emotional and physical harm" to him; she based her opinion on the fact that Kyle was currently incarcerated "and he won't be released for at least another year, and that he [has] not fully parented his son." The DCS case manager also testified that, with the exception of a recent conversation, A.B. "doesn't really talk about his dad"; she was aware of Kyle seeing A.B. only "one time"; and, Kyle had not sent any cards, gifts, or letters to A.B. since he was incarcerated. She also testified that Kyle would need to participate in services for "another year" after he is released from prison, and concluded that termination was in A.B.'s best interests because it would provide him with stability and permanency, rather than leaving him "in limbo." At the conclusion of the severance hearing, the juvenile court found termination warranted on both alleged grounds and that it was in A.B.'s best interests to sever Kyle's parental rights. This appeal followed.

¶6 Kyle argues there was insufficient evidence to terminate his parental rights to A.B. based on length of incarceration. A juvenile court may terminate a parent's rights pursuant to § 8-533(B)(4) when "the parent is deprived of civil liberties due to the conviction of a felony" and "the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years." In evaluating whether the length of a person's prison term is sufficient to justify termination, the court must consider all relevant circumstances including but not limited to the following:

(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. After considering those and other ...

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