TIMOTHY B., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.B., Appellees.
No. CV-20-0318-PR
SUPREME COURT OF THE STATE OF ARIZONA
March 7, 2022
Appeal from the Superior Court in Maricopa County, The Honorable Michael D. Gordon, Judge, No. JD33713, REVERSED AND REMANDED. Opinion of the Court of Appeals, Division One, 250 Ariz. 139 (App. 2020), VACATED.
David W. Bell, Law Office of David W. Bell, Mesa; Steven Czop (argued), Czop Law Firm, PLLC, Higley, Attorneys for Timothy B.
Mark Brnovich, Arizona Attorney General, Drew C. Ensign, Section Chief, Civil Appeals, Dawn R. Williams (argued), Autumn Spritzer, Assistant Attorneys General, Tucson, Attorneys for Department of Child Safety
VICE CHIEF JUSTICE TIMMER, opinion of the Court:
¶1 The juvenile court can terminate the parent-child relationship if at least one ground listed in
BACKGROUND
¶2 H.B. was born in September 2012 and initially lived with her father, Timothy B., her mother, Jaliece J., and her half-siblings. When H.B. was two-and-one-half years old, Timothy was convicted of several felony charges, including kidnapping, attempted sexual assault, unlawful flight from law enforcement, and aggravated assault. The superior court sentenced him to 12.5 years in prison and imposed lifetime probation upon his release, which will occur in 2024 when H.B. is eleven years old.
¶3 After Timothy was incarcerated, H.B. lived with her paternal grandmother and paternal aunt for the next few years. During that time, they facilitated extensive contact between Timothy and H.B. Timothy frequently spoke with his daughter by telephone, wrote to her often, and had regular in-person visits with her. Neither the grandmother nor the aunt established a legal responsibility to care for H.B. through a guardianship. See
¶5 The juvenile court found H.B. and her half-siblings dependent as to Jaliece and their respective fathers. H.B.‘s paternal aunt asked that H.B. be placed with her, but that request was denied because the aunt lived with the paternal grandmother, who did not pass a background check. Instead, the court granted DCS‘s request that H.B. be placed with Jaliece‘s friend, who had known H.B. since birth. During H.B.‘s lengthy dependency, she spoke with Timothy weekly and visited him monthly.
¶6 DCS was unable to successfully reunify Jaliece with her children after two years of providing services, and the court approved a change in case plan to severance and adoption. DCS sought to terminate Timothy‘s parental rights pursuant to the length-of-sentence ground listed in
¶7 In considering the length-of-sentence ground, the court relied on In re Appeal in Maricopa County Juvenile Action No. JS-5609, 149 Ariz. 573, 575 (App. 1986), which found that “[t]he ‘normal home’ referred to in the statute relates to [an incarcerated parent‘s] obligation to provide a normal home, a home in which the [incarcerated parent] has a presence, and it does not refer to a ‘normal home’ environment created by [others].” The court also considered non-exclusive factors set forth in Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, 251-52 ¶ 29 (2000):
(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.
In applying these factors, the court found that on the one hand, Timothy and H.B. enjoy a “fairly strong relationship” and that “[Timothy] has done all he can to maintain and nurture his relationship with [H.B.].” The court remarked on their “strong bond“; “frequent telephone contact“; regular visits, which included helping H.B. with homework; and exchanges of cards, gifts, letters, poetry, and drawings. According to the court, Timothy clearly loves his daughter, is “kind and attentive,” and both H.B. and Timothy enjoy visitation.
¶8 On the other hand, the court found that Timothy‘s love and care is insufficient to meet H.B.‘s needs. The court observed that “[H.B.] has no parent available to walk her to school, to teach her how to ride a bicycle, go to school functions, and help with homework on a regular basis” and that Timothy “has been and remains unavailable for [H.B.‘s] daily care and for milestone events.” It also found that the nature of Timothy‘s convictions made it unlikely he would be able to parent immediately following release from custody, and that he could be reincarcerated if he violates probation.
¶9 The court concluded that while Timothy‘s efforts have been “extraordinary and laudable,” his incarceration has and will continue to deprive H.B. “of her father‘s everyday guidance, care and support” for over half her childhood, meaning she is deprived of a normal home for a period of years, thereby demonstrating the length-of-sentence ground for termination under
¶10 Turning to H.B.‘s best interests, the court focused “solely” on her interests under “the totality of the circumstances.” It found that H.B. is happy in an adoptive placement with a younger half-sister, and the placement meets all her needs; the placement will ensure that H.B. regularly visits her other half-siblings; and absent termination, H.B. would “languish further awaiting for [her] father to be released from custody with a hope that [he] may be ready to safely parent [her].”
¶12 We granted DCS‘s petition for review to provide guidance on what constitutes a “normal home” under
DISCUSSION
I.
¶13 The juvenile court conducts a two-step inquiry in determining whether to terminate the parent-child relationship. See Alma S., 245 Ariz. at 149-50 ¶ 8. First, the court must decide whether clear and convincing evidence demonstrates at least one ground listed in
¶14 We will affirm a termination order unless the juvenile court abuses its discretion or the court‘s findings are not supported by reasonable evidence. Jessie D. v. Dep‘t of Child Safety, 251 Ariz. 574, 579 ¶ 10 (2021). A court abuses its discretion by misapplying the law. State v. Miles, 243 Ariz. 511, 513 ¶ 7 (2018).
A.
¶15 The length-of-sentence ground for termination provides, in relevant part, that termination is justified when “the parent is deprived of
¶16 We review the meaning of
¶17 “Normal home” as used in
¶18 Applying secondary interpretive principles reveals the legislature‘s intended meaning of “normal home.” We start by examining
¶19 Before 1970, Arizona did not have a separate statutory scheme for terminating the parent-child relationship. Instead, termination occurred in the context of adoption, with or without the “natural” parent‘s consent.2 See, e.g.,
¶20 In 1970, the legislature ended the practice of maintaining the parent-child relationship during long-term institutional or foster care by prescribing termination procedures. See 1970 Ariz. Sess. Laws ch. 153, § 1 (2nd Reg. Sess.). These procedures were designed to “safeguard the rights and interests of all parties concerned and promote their welfare and that of the state.”
¶21 The 1970 act authorized termination of a parent-child relationship if any one of several grounds existed. See
¶22 In 1986, the legislature reenacted
¶23 The legislature has amended
¶24 The “normal home” does not necessarily require the incarcerated parent‘s physical presence, as the JS-5609 court concluded. First, the legislature‘s intent to strengthen and preserve familial bonds, whenever possible, cuts against requiring the incarcerated parent‘s physical presence in the home if the child is otherwise in a stable and long-term family environment outside foster care. See 1970 Ariz. Sess. Laws ch. 153, § 1 (2nd Reg. Sess.); see also
¶25 Second, the option for establishing a permanent guardianship for dependent children without terminating parental rights evidences the legislature‘s intent that the incarcerated parent does not have to be physically present for the child to live in a “normal home.” See
¶26 Third, we are mindful that if the birth or adoptive parent‘s physical presence is required to make a “normal home,” a prison sentence of any “period of years” would necessarily result in termination of parental rights.
¶27 For these reasons, we define “normal home” in
¶28 Turning to this case, we conclude that remand is necessary. The juvenile court applied the definition of “normal home” from JS-5609 and grounded its ruling on Timothy‘s inability to be physically present in H.B.‘s home. Thus, it did not consider whether a permanent guardianship could provide H.B. with a “normal home” while Timothy maintained his parental rights. Notably, in denying Timothy‘s motion to change physical
B.
¶29 The court of appeals, relying on Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 35 (2005), concluded the juvenile court erred in conducting the best-interests inquiry by focusing “solely” on H.B.‘s best interests after finding the length-of-sentence ground rather than “balanc[ing] the interests of both the child and the parent.” Timothy B., 250 Ariz. at 146 ¶ 21. DCS argues the court of appeals misinterpreted Kent K. and improperly subordinated H.B.‘s interests to Timothy‘s interests by remanding to the juvenile court to conduct “a proper balancing of H.B.‘s and Timothy‘s respective interests.” See id. ¶ 22.
¶30 In Kent K., this Court recognized that once the juvenile court finds the parent unfit due to the existence of at least one ground listed in
¶31 The “balancing” performed by the juvenile court during the best-interests inquiry does not pit the parent‘s interests against the child‘s best interests to determine which predominate; at this stage, it is a given that the child‘s best interests predominate. See Kent K., 210 Ariz. at 286 ¶ 35. As this Court has stated several times, the juvenile court‘s primary concern in the best-interests inquiry is the “child‘s interest in stability and security.” Alma S., 245 Ariz. at 150 ¶ 12 (quoting Demetrius L., 239 Ariz. at 4 ¶ 15); see Kent K., 210 Ariz. at 287 ¶ 37; see also id. at 286 ¶ 35
¶32 To the extent the court of appeals’ opinion suggests that a court must give equal weight to a parent‘s interest in the custody and care of a child and the child‘s interests in security and stability and then balance those interests in making the best-interests determination, we disagree. The juvenile court must not “subordinate the interests of the child to those of the parent once a determination of unfitness has been made.” Alma S., 245 Ariz. at 151 ¶ 15. The parent‘s exercise of parental rights must be viewed through a lens focused on the child‘s best interests.
¶33 The juvenile court here focused “solely” on H.B.‘s best interests as distinct from Timothy‘s interests in making the best-interests determination. It is not clear from the ruling whether the court considered Timothy‘s efforts to parent H.B. from prison and the strength of the bond between Timothy and H.B. in determining whether termination would serve H.B.‘s best interests. We need not decide whether error occurred. If on remand the court finds the existence of the length-of-sentence ground for termination and conducts a best-interests analysis, it should consider Timothy‘s past and ongoing efforts to parent H.B. from prison and their impact on H.B.‘s interest in a safe and stable home life.
¶34 Finally, we recognize that conducting the best-interests inquiry after finding the length-of-sentence ground for termination may be repetitive. Here, when the court considers the availability of a permanent
CONCLUSION
¶35 We reverse the juvenile court‘s judgment and remand for a new determination considering this opinion. We vacate the court of appeals’ opinion.
BOLICK, J., concurring in the result:
¶36 I enthusiastically join the result here. Along with the recent decision in Jessie D. v. Department of Child Safety, 251 Ariz. 574 (2021), the Court has taken significant steps to reconcile our jurisprudence with the fundamental rights of parents under the United States Constitution and Arizona law. However, I write separately because the framework within which we decide these cases still falls significantly short of constitutional requirements.
¶37 It is uncontestable, as the Court acknowledges, supra ¶ 24, that parents have a fundamental right to the control and upbringing of their children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Pierce v. Soc‘y of Sisters, 268 U.S. 510, 534-35 (1925). Ordinarily, when the government seeks to divest a fundamental right, it must demonstrate a compelling purpose and that its means of accomplishing that purpose are narrowly tailored. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 270 (2003).
¶38 Even more specifically, Arizona law recognizes that “[t]he liberty of parents to direct the upbringing . . . of their children is a fundamental right.”
¶39 In this case, the father, Timothy B., gravely jeopardized his rights to and relationship with his daughter by committing very serious crimes. Indeed,
¶40 In Jessie D., we recognized how difficult it is for a person sentenced to incarceration for a period of years to maintain a parental relationship and that the state must take steps to facilitate it. 251 Ariz. at 581 ¶ 17. In this case, Timothy‘s determination, combined with the efforts of both prison officials and his daughter H.B.‘s caretakers, has culminated in a deep, loving relationship between father and daughter. Indeed, Timothy testified that prison officials enlisted him to provide classes to other inmates hoping to nurture a parental relationship with their children. Although H.B. clearly desires to maintain her relationship with her dad,
¶41 The opinion today takes two important steps to achieve a just result in this case. First, consistent with statutory intent, it construes “normal home” in
¶42 Second, the Court requires the trial court to consider whether a permanent guardianship is possible here as an alternative to termination. A guardianship appointment would protect Timothy‘s rights, preserve the father-daughter relationship, and achieve the stable home environment that DCS seeks. As such, it is a classic example of a “less restrictive means” that Arizona law commands us to consider.
¶43 However, the overall framework the Court applies continues to diverge from constitutional requirements. As the Court observes, in termination cases, it applies a “two-step inquiry.” Supra ¶ 13. First, it requires proof by clear and convincing evidence that one of the statutory grounds for termination exists under
¶44 In Alma S. v. Department of Child Safety, 245 Ariz. 146, 150 ¶ 10 (2018), the Court held that most grounds for termination in
¶45 In Santosky, the Supreme Court observed that this first stage of termination proceedings “entails a judicial determination that the parents are unfit to raise their own children.” 455 U.S. at 760. At that stage, “the State cannot presume that a child and his parents are adversaries.” Id. Such factors as the intensity of the state‘s efforts to preserve the family, the perseverance of the family relationship, and the parent‘s rehabilitation efforts should be considered in this first stage of the proceedings, with its higher burden on the state to prove unfitness by clear
¶46 In Jessie D., the Court stated that the length of sentence inquiry under
¶47 Per Santosky, all evidence pertaining to the parent‘s rights, including rehabilitation and efforts to preserve the family, should be considered in the first phase of the parental termination proceedings, where the state bears the greater burden of proof. In many cases, the parent will not contest termination, or the evidence of unfitness will be overwhelming. See Santosky, 455 U.S. at 762, 769-70. But in other cases, like this one, the issue will be greatly contested. I am satisfied that, after Jessie D. and this case, a careful, individualized determination will be made in the length of sentence context that takes into account the parent‘s fundamental rights.
¶48 However, that confidence is undermined by the Court‘s assertion that “the parent‘s interest in maintaining a positive parent-child relationship and the parent‘s efforts and ability to do so” should be considered in the second stage of the termination proceeding, the child‘s best interests analysis. Supra ¶ 31. Similarly, the Court held in Alma S. that “courts should consider a parent‘s rehabilitation efforts as part of the best-interests analysis.” 245 Ariz. at 151 ¶ 15. Those holdings are exactly what Santosky expressly rejected, given that in the best interests stage of proceedings the interests of the parent and child are presumed to diverge, the focus is therefore properly on the child‘s interests, and the inquiry is subject to the preponderance of evidence standard that Santosky repudiated in the context of determining the parent‘s rights. 455 U.S. at 758-70. The parent‘s interests should be considered in the unfitness stage, where “the child and his parents share a vital interest in preventing erroneous
¶49 This year marks Santosky‘s fortieth anniversary. Regretfully, that is the latest definitive word from the Supreme Court on the substantive and procedural due process principles that apply to “forced dissolution” of parental rights and “the irretrievable destruction” of family relationships. Id. at 753. Notwithstanding the work that remains in bringing our jurisprudence, statutes, rules, and agency practices into harmony with the Fourteenth Amendment, I applaud my colleagues for a decision that recognizes the precious rights and interests at stake.