NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ELIJAH H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.H., E.H., Appellees.

No. 1 CA-JV 16-0477

Appeal from the Superior Court in Maricopa County

No. JD28968

The Honorable John R. Ditsworth, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By JoAnn Falgout

Counsel for Appellee
ELIJAH H. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop

joined.

B E E N E, Judge:

¶1 Elijah H. (“Father”) appeals the superior court’s termination 

of his parental rights. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father is the biological parent of Elijah H. and Elaijah H. 

(“Children”). In August 2014, the Department of Child Services (“DCS”) 

filed a dependency petition alleging Father was unable to care for Children 

and had committed multiple acts of domestic violence against Mother.

1

After a hearing, Children were adjudicated dependent.

¶3 Father was arrested in August 2015, for possession of a 

firearm and possession of marijuana for sale and was sentenced to a four–

and–a–half year term of imprisonment. DCS then moved to terminate 

Father’s parental rights to Children on several grounds, including the 

length of incarceration for a felony conviction that would deprive the 

Children of a normal home for a period of years. Ariz. Rev. Stat. (“A.R.S.”) 

§ 8-533(B)(4) (2017).2

¶4 After a contested termination hearing, the superior court 

found by clear and convincing evidence that Father’s conviction and 

imprisonment for four-and-a-half years was a valid basis for termination, 

and found by a preponderance of the evidence that it was in Children’s best 

interests to terminate Father’s parental rights. Father timely appealed. We 

have jurisdiction pursuant to A.R.S. §§ 12–120.21 (2017) and 12–2101 (2017).

 

1 Mother’s parental rights were also terminated, but she is not a party 

to this appeal.

2 Absent material revisions after the relevant date, we cite a statute’s 

current version.
ELIJAH H. v. DCS, et al.

Decision of the Court

3

DISCUSSION

¶5 Custody of one’s children is a fundamental, but not absolute, 

right. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). 

The superior court may terminate a parent’s rights upon clear and 

convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B), 

and upon finding by a preponderance of the evidence that termination is in 

the best interests of the child.3 Michael J., 196 Ariz. at 248-49, ¶ 12. We 

review the superior court’s termination order for an abuse of discretion; we 

will affirm the order unless its factual findings 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, 377, ¶ 2 (App. 1998).

¶6 “Parental rights may be severed ‘if the sentence of such parent 

is of such length that the child will be deprived of a normal home for a 

period of years.’” Michael J., 196 Ariz. at 251, ¶ 28 (quoting A.R.S. § 8–

533(B)(4)). There is no term of imprisonment that will per se sever parental 

rights. Id. at 251, ¶ 29. That is, “a 20–year sentence might not provide

sufficient basis for severing an incarcerated parent’s rights, while in another 

case a 3–year sentence could provide the needed basis.” Id.

¶7 When terminating parental rights on length of incarceration 

grounds, pursuant to A.R.S. § 8–533(B)(4), the superior court should 

consider all relevant factors, inter alia:

(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 relevant factors, the trial court 

can determine whether the sentence is of such a length as to 

deprive a child of a normal home for a period of years.

Id. at 251–52, ¶ 29.

 

3 Father does not challenge the best-interests finding, and we therefore 

do not address it.
ELIJAH H. v. DCS, et al.

Decision of the Court

4

¶8 Father argues that the superior court erred by terminating his 

parental rights because the evidence does not support termination. The 

superior court heard conflicting testimony from DCS and Father. When 

there is conflicting evidence, the superior court may make a finding 

provided there is substantial evidence to support it. Imperial Litho/Graphics 

v. M.J. Enters., 152 Ariz. 68, 77 (App. 1986). The superior court is in the best 

position to weigh the evidence and assess witness credibility, and we will 

affirm a severance order unless it is clearly erroneous. See Jesus M. v. Ariz. 

Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶9 Here, the superior court thoroughly weighed the testimony 

and evidence presented during the hearing and determined that the 

statutory grounds for termination were present. Addressing the non–

exclusive factors set forth by the Arizona Supreme Court in Michael J., the 

superior court determined that the youngest child, 15–months-old when

Father was sentenced to prison, “did not have a meaningful relationship 

with her [F]ather” and “should not even remember” him. As to the oldest 

child, who was two–and–a–half years old at the time of Father’s 

incarceration, the superior court found that the child “could remember the 

domestic violence that occurred in the home” and the relationship was 

unhealthy and “filled with turmoil.” The superior court also found, by clear 

and convincing evidence, that Father would be unable to maintain any 

future bond with Children while incarcerated. Moreover, the superior 

court found that “there is no other parent [to provide a normal life for 

Children] as the [M]other is being severed in this matter.” The superior 

court also found that Father’s four–and–a–half year incarceration would 

cause Children to languish in state care and deprive “them of permanency 

and stability for a period of years.” We find no error in the superior court’s 

finding that clear and convincing evidence demonstrates a valid basis for 

termination under § 8-533(B)(4).
ELIJAH H. v. DCS, et al.

Decision of the Court

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CONCLUSION

¶10 For the foregoing reasons, we affirm the superior court’s 

termination of Father’s parental rights.