IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

JEFFREY P., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, S.P., Appellees. 

No. 1 CA-JV 15-0031 

Appeal from the Superior Court in Navajo County 

No. S0900JD201300017 

The Honorable Michala M. Ruechel, Judge 

AFFIRMED 

COUNSEL 

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

OPINION 

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in 

which Judge Kent E. Cattani and Judge John C. Gemmill joined. 
JEFFREY P. v. DCS, S.P. 

Opinion of the Court 

2

J O H N S E N, 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.1 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).2 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.3 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. 

 

1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz. 

2014) (enacted), the Department of Child Safety is substituted for the 

Arizona Department of Economic Security in this matter. See ARCAP 27.

2 Absent material revision after the relevant date, we cite a statute's 

current version. 

3 Child's mother is not a party to this appeal. 
JEFFREY P. v. DCS, S.P. 

Opinion of the Court 

3

DISCUSSION 

¶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 

(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 (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 (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 

provide a normal home life, and (6) the effect of the 

deprivation of a parental presence on the child at issue. 

196 Ariz. at 251–52, ¶ 29. 

¶7 Father argues the superior court erred by failing to consider 

the possibility he would be released early from prison. He was sentenced 

to 2.5 years in prison beginning on July 10, 2014, with presentence 

incarceration credit of 233 days, meaning that his term of incarceration was 

scheduled to end in May 2016. At trial, Father testified he might qualify for 

early release, which would allow him to be released on community 

supervision in October 2015. Contrary to Father's contention, the superior 

court plainly considered that he might be released before May 2016: Its 
JEFFREY P. v. DCS, S.P. 

Opinion of the Court 

4

order noted that Father's community supervision might begin as early as 

October 2015.4

¶8 Father seems to argue the court erred by not finding that his 

early release was a certainty. In exercising its broad authority to determine 

each case on its facts, however, a court addressing the incarceration ground 

for severance must consider the designated length of the sentence and may 

consider the possibility of early release. See Michael J., 196 Ariz. at 251-52, 

¶ 29; cf. Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 16 (App. 

2014) (anticipated early release from incarceration "is a relevant factor" in 

considering severance based on incarceration); Ariz. Dep't of Econ. Sec. v. 

Matthew L., 223 Ariz. 547, 550-51, ¶ 15 (App. 2010) ("As long as the juvenile 

court considers the length of sentence, we find no error for it to also 

consider the anticipated release date."). No authority requires the court to 

presume an early release. 

¶9 Father also argues that if he were released in October 2015, he 

would have been incarcerated for only nine months from the date of the 

amended court order severing his parental rights. But the relevant period 

is the entire period of incarceration, not solely the time after entry of the 

termination order. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, 

¶ 8 (App. 2002). ("We conclude the legislature used the words 'will be 

deprived' in § 8-533(B)(4) to mean 'will have been deprived' in total, 

intending to encompass the entire period of the parent's incarceration and 

absence from the home."). 

¶10 Father further argues that if released early, he would have 

been incarcerated for fewer than two years, which he argues is too short to 

amount to a "period of years" for purposes of § 8-533(B)(4). We need not 

address that issue, however, because, as stated, the superior court was not 

required to find Father would be released before the completion of his 

entire term. Moreover, as Father acknowledged in oral argument, Child 

would not necessarily have been returned to him immediately upon his 

release from prison. His conditions of release might affect his ability to 

interact with Child; beyond that, he still needed to complete parenting 

classes, counseling and other services. Accordingly, the superior court 

reasonably could conclude that more than two years would pass before 

Father could be reunited with Child. 

 

4 We take judicial notice of the fact that Father was no longer 

incarcerated at the time of our oral argument on November 10, 2015. See 

Ariz. R. Evid. 201. 
JEFFREY P. v. DCS, S.P. 

Opinion of the Court 

5

¶11 Relying on Matthew L., Father argues that notwithstanding his 

incarceration, he has a strong relationship with Child. Like the parent in 

that case, Father maintained contact with Child by writing letters and 

sending a birthday card. See Matthew L., 223 Ariz. at 548, ¶ 4. Father also 

requested visitation with Child, but DCS denied the request because it 

concluded the travel was not in Child's best interest. 

¶12 In Matthew L, we affirmed the superior court's denial of a 

motion to terminate based on incarceration because reasonable evidence 

supported the court's ruling. 223 Ariz. at 551, ¶ 19. We viewed the evidence 

in that case in the light most favorable to sustaining the court's ruling and 

emphasized the discretion vested in the superior court to consider and 

weigh all relevant factors. Here, the superior court granted DCS's motion 

to terminate Father's parental rights based on its review of the evidence, 

and this court will not reweigh the evidence on which that court based its 

ruling. See Rocky J., 234 Ariz. at 441, ¶ 15 (superior court "reasonably 

concluded" insufficient evidence presented to support severance when 

parent had been incarcerated for much of 12-year-old child's life but 

expected to be released on parole seven months after severance trial). 

¶13 Father contends the superior court failed to recognize the 

relationship he had with Child for the first six months of her life. He 

testified he saw Child every day during the month after her birth and that 

she had been in his care for two months before his arrest. In deciding 

whether to sever a parent's rights due to incarceration, however, the 

superior court must consider not only the parent-child relationship at the 

time the incarceration commences but also, how and whether that 

relationship may be maintained during the incarceration. See Michael J., 196 

Ariz. at 251, ¶ 29 (court must consider the "parent-child relationship 

existing when incarceration begins" and the "degree to which the parentchild relationship can be continued and nurtured during the 

incarceration"). A DCS supervisor testified it is difficult to nurture a parentchild relationship between a young child and an incarcerated parent: 

In the first few years of development, trust is the primary 

thing that we work on developing . . . . When a child is not —

doesn't have that touch, doesn't learn that a parent is going to 
JEFFREY P. v. DCS, S.P. 

Opinion of the Court 

6

come back and be there, that's where a child doesn't develop, 

and they develop sort of cognitive delays as a result of that.5

The record does not support Father's contentions that the court failed to 

consider his historical relationship with Child or that the court failed to 

consider any of the relevant factors. The record reveals evidence both of

Father's historical relationship with Child and the difficulties of

maintaining that relationship during Father's incarceration. See Michael J., 

196 Ariz. at 251, ¶ 29 (the superior court has discretion to consider each case 

on its particular facts and in making its determination, can consider all 

relevant factors). 

¶14 Father also argues that to support severance based on 

incarceration, DCS was required to offer evidence that he would not be able 

to renew and continue his relationship with Child after his release. The 

inquiry under § 8-533(B)(4), however, focuses on the child's needs during 

the incarceration and not solely on whether the parent would be able to 

continue the parent-child relationship after release. See A.R.S. § 8-533(B)(4) 

(severance ground established if parent's sentence is "of such length that the 

child will be deprived of a normal home for a period of years"); see also 

Michael J., 196 Ariz. at 252, ¶ 29 (relevant factors include "the availability of 

another parent to provide a normal home life" and "the effect of the 

deprivation of a parental presence on the child at issue"); Maricopa County 

Juv. Action No. JS-5609, 149 Ariz. 574, 575 (App. 1986) ("The 'normal home' 

referred to in the statute relates to respondent's obligation to provide a 

normal home, a home in which the respondent natural father has a 

presence, and it does not refer to a 'normal home' environment created by 

[others]."). Because Child's mother's parental rights already had been 

terminated, the court found that due to Father's incarceration, there was "no 

parent who can safely parent [Child] . . . nor is there likely to be one in the 

near future." As a result, the court noted, by the time of Father's release and 

possible reunification with Child, "she will have been deprived of a normal 

home for a period of years (the vast majority of her life)." 

¶15 Nothing in this Opinion should be taken to mean that a 

sentence of 2.5 years, as a matter of law, will suffice to support severance 

pursuant to § 8-533(B)(4). See Rocky J., 234 Ariz. at 441, ¶ 17; Christy C. v. 

 

5 Father contends the court erred by relying on the supervisor's 

testimony because the caseworker gave conflicting testimony. The superior 

court, however, is in the best position to "judge the credibility of the 

witnesses, and make appropriate findings." Jesus M., 203 Ariz. at 280, ¶ 4. 
JEFFREY P. v. DCS, S.P. 

Opinion of the Court 

7

Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 450, ¶ 15 (App. 2007) ("there is no 

threshold level under each individual factor in Michael J. that either 

compels, or forbids, severance"). The factual findings the superior court 

must make before it orders severance of a parent's rights based on 

incarceration are committed to the court's sound discretion. 

CONCLUSION 

¶16 The court in this case heard conflicting evidence. Although 

the evidence did not compel the court to grant the motion to terminate 

Father's rights, sufficient evidence supported the exercise of discretion by 

the court to order severance. We therefore affirm.