Appeal from the Superior Court in Navajo County. No. S0900JD201300017. The Honorable Michala M. Ruechel, Judge.
Riggs Ellsworth & Porter, PLC, Show, Low By Michael R. Ellsworth, Counsel for Appellant.
Arizona Attorney General's Office, Mesa, By Eric K. Knobloch, Counsel for Appellee DCS.
Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge John C. Gemmill joined.
Diane M. Johnsen, Judge:
[¶1] We reaffirm in this case the principle that in considering whether to terminate a parent's rights due to incarceration, the superior court may but need not presume the parent will be released from prison before completing his or her full term.
FACTS AND PROCEDURAL BACKGROUND
[¶2] Jeffrey P. (" Father" ) is the parent of a child (" Child" ) born in 2013. Child was born substance-exposed because of methamphetamine use by her mother. Within a month after Child's birth, the Department of Child Safety (" DCS" ) filed a dependency petition alleging her parents failed to participate in services and remain substance-free. Father stipulated to the dependency, acknowledging his need for services and for help in establishing a safe environment for Child, and the court returned Child to him in September 2013.
[¶3] In November 2013, Father was arrested and charged with second-degree burglary, and DCS removed Child from Father's custody. After Father was sentenced eight months later to a 2.5-year prison term, the court changed the case plan from reunification to severance and adoption. DCS then moved to terminate both parents' parental rights, alleging, inter alia, that Father's incarceration would deprive Child of a normal home for a period of years under Arizona Revised Statutes (" A.R.S." ) section 8-533(B)(4) (2016). Following trial on November 13, 2014, the superior court granted the motion to terminate both parents' rights.
[¶4] Father timely appealed the court's termination order. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, A.R.S. § § 8-235(A) (2016), 12-2101(A)(1) (2016) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
[¶5] The right to custody of one's child is fundamental, but it is not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶ ¶ 11-12, 995 P.2d 682 (2000). The superior court may terminate a parent-child relationship upon clear and convincing evidence of at least one of the statutory grounds detailed in A.R.S. § 8-533(B). Id. at 249, ¶ 12. Additionally, the court must find by a preponderance of the evidence that termination is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013 (2005). We review a termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43 (App. 2004).
[¶6] As relevant here, § 8-533(B)(4) provides that a parent's rights may be terminated if " 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 Michael J., our supreme court set out a non-exclusive list of factors for courts to consider in determining if a parent's prison sentence will deprive a child of " a normal home for a period of years" :
(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 ...