In re the Appeal in Maricopa County

904 P.2d 1279, 183 Ariz. 455, 192 Ariz. Adv. Rep. 15, 1995 Ariz. App. LEXIS 124
Court of Appeals of Arizona·Decided June 6, 1995·No. No. 1 CA-JV 94-0082·Published·Cited by 9 cases

Opinions

OPINION

GRANT, Judge.

Natural father appeals from a juvenile court judgment severing his parental rights to his daughter Erin, who was born in 1982 and who lived with him until 1990 when he was arrested and charged with one count of sale of cocaine. The severance was ordered in 1994 solely on grounds that Father’s 1991 sentence to prison for 5.25 years would deprive Erin of a normal home for a period of years. See Ariz.Rev.Stat.Ann. (“A.R.S.”) § 8-533(B)(4) (1989). On the facts presented, we conclude that the juvenile court did not abuse its discretion in severing Father’s parental rights.

I. Facts

Erin was born in December 1982, shortly before the 1983 marriage of Father and Mother. The couple’s unhappy marriage was terminated by divorce in 1987. At that time the court ordered that Father and Mother share joint custody, with Father to provide Erin’s primary residence and Mother to have standard visitation rights and pay $141 in monthly child support. Mother was unhappy that she had to pay child support and that Erin was living with Father. In 1988, Mother married Stepfather, a good husband and provider who quickly developed a close relationship with Erin.

In May 1990, with Erin and her half-brother, Eric, present, Father was arrested at his home for sale of cocaine to an undercover officer. When Father went to jail, Erin, then seven, went to live with Mother and Stepfather. In November 1990, the domestic relations court granted Mother’s petition for sole custody of Erin. For reasons that are not clear on this record, the sheriffs office did not transport Father to the courtroom for the custody hearing apparently because Father stated he did not wish to appear. At the hearing the court ordered that he have no visitation with Erin and pay no child support. The court also ruled that on his release from prison, Father could petition to gain visitation rights (and begin child support obligations).

In April 1991, Father was convicted on the drug charge and sent to prison for the mitigated term of 5.25 years, which by law must be served day-for-day. Father will be released from prison in December 1995, about fifteen months after entry of the judgment severing his parental rights, and about twenty-seven months after Mother filed the severance petition in September 1993.

At the severance hearing, Mother and Stepfather testified that they sought severance of Father’s parental rights because Erin had repeatedly expressed a strong desire that Stepfather adopt her. Erin had no contact with Father after his incarceration in 1990.

The severance trial in June and August 1994 was an emotional and hotly-contested proceeding in which Mother and Father offered the court much negative evidence about each other. Because the judgment does not include factual findings of unfitness, there is no need here for a litany of the negative evidence offered by Erin’s parents about each other. It suffices to say that Mother admitted she had been a prostitute with drug and alcohol problems as well as mental health problems for some years until about 1984, Father admitted he abused drugs for several years until his arrest in 1990; neither parent thought the problems of the other were entirely in the past. In terms of positive evidence, the record supports a finding that both parents have substantially reformed in recent years, Father in prison and Mother in a new job and new marriage.

Three experts—an adoption services caseworker, a therapist (retained by Mother) and a psychologist (also retained by Mother)— testified that severance and subsequent adoption by Stepfather would be in Erin’s best interests. At Father’s request, the court appointed another psychologist to eval[458] uate Erin’s best interests and, based in part on this evaluation, the child’s guardian ad litem reported to the court in August 1994 (post-trial) that she also believed that severance would be in Erin’s best interests, although she was critical of the process of evaluation.

In August 1994, the court ordered severance of Father’s parental rights, concluding in relevant part as follows:

2. The Petitioner [mother] has established by clear and convincing evidence that [father] is deprived of his civil liberties due to his conviction for sale of narcotic drugs, a felony. The sentence for that offense is of such a length that his child, Erin, has been and will be deprived of a normal home provided by him for a period of years sufficient to irreparably damage the parent-child relationship between [father] and his daughter, Erin. A.R.S. § 8-533(B)(4).
3. The Petitioner has not established by clear and convincing evidence that [father] abandoned his child Erin within the meaning of A.R.S. § 8-533(B)(l). (The Court does not find that [father’s] actions did not amount to abandonment. The Court finds only that the Petitioner has not met the burden of proof with regard to this theory.)
4. The Petitioner has established by clear and convincing evidence that it is in the best interests of the child to terminate the parent-child relationship between her and [father].

Father timely appealed. We have jurisdiction pursuant to A.R.S. section 12-120.21(A)(1) (1992).

II. Discussion

Father raises several issues, but we discuss only his claim that the court erred by severing parental rights on length-of-sentence grounds stated in paragraph 2 of the judgment. We do not agree with Father under the totality of the facts of this case. We find no abuse of discretion in paragraphs 3 and 4 of the judgment, nor do we find reversible error in the second sentence of paragraph 2, quoted above.

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In re the Appeal in Maricopa County, 904 P.2d 1279, 183 Ariz. 455, 192 Ariz. Adv. Rep. 15, 1995 Ariz. App. LEXIS 124 (Ark. Ct. App. 1995).

904 P.2d 1279 (In re the Appeal in Maricopa County) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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