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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GABRIAL G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, G.G., Appellees.

No. 1 CA-JV 17-0390

Appeal from the Superior Court in Maricopa County

No. JD527057

The Honorable David J. Palmer, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant

Arizona Attorney General's Office, Phoenix

By Sandra L. Nahigian

Counsel for Appellee DCS

FILED 4-24-2018
GABRIAL G. v. DCS, G.G.

Decision of the Court

2

MEMORANDUM DECISION

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

which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 Gabrial G. ("Father") challenges the superior court's order 

terminating his parental rights to his daughter, G.G. For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 G.G. was born in January 2003. In September 2013, the 

Department of Child Safety ("DCS") took her into care, alleging she was 

dependent due to Father's incarceration, mental health issues and neglect. 

The court found her dependent as to Father in May 2014, and the court 

adopted a family reunification case plan. In June 2014, G.G. began living 

with her maternal grandmother, who is the potential adoptive placement.

¶3 In December 2014, over Father's objection, the court approved 

a change in case plan to severance and adoption. In May 2015, DCS moved

to terminate Father's parental rights, alleging 15 months in out-of-home 

placement. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(8)(c) (2018).

1 In January 

2016, however, on motion by DCS, the superior court changed the case plan 

to family reunification concurrent with severance and adoption and 

dismissed the motion for termination. In August 2016, the court granted 

DCS's motion to change the case plan back to severance and adoption, and 

DCS filed a new motion to terminate Father's parental rights based on the 

length of his felony prison sentence. See A.R.S. § 8-533(B)(4).

¶4 After a hearing in August 2017, the superior court granted the 

motion to terminate. This court has jurisdiction over Father's timely appeal 

pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-

235(A) (2018), 12-120.21(A) (2018) and -2101(A) (2018).

 

1 Absent material revision after the relevant date, we cite the current 

version of a statute or rule.
GABRIAL G. v. DCS, G.G.

Decision of the Court

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DISCUSSION

¶5 Termination of parental rights requires clear and convincing 

evidence of a statutory ground set out in § 8-533(B), Michael J. v. Ariz. Dep't 

of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and proof by a preponderance 

of the evidence that termination is in the best interests of the child, see Kent 

K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). Because the superior court "is 

in the best position to weigh the evidence, observe the parties, judge the

credibility of witnesses, and resolve disputed facts," this court will affirm

an order terminating parental rights so long as it is supported by reasonable

evidence. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.

2009).

¶6 Father has been incarcerated for at least half of G.G.'s life.

Most recently, in September 2014, Father was sentenced to 4.5 years in 

prison; he had been in custody for nearly six months before sentencing.

Father's early release date on the 2014 sentence was November 2017; his 

maximum end date was mid-February 2018. During his incarceration, 

Father maintained occasional telephone contact with G.G. and sent letters 

to her.

¶7 Under § 8-533(B)(4), the court may terminate the rights of a 

parent who is "deprived of civil liberties due to the conviction of a felony"

when the parent's prison sentence "is of such length that the child will be 

deprived of a normal home for a period of years." Father argues the court 

erred by granting severance on this ground because he continues to have a 

relationship with G.G. and because his "anticipated release from

incarceration" was just three months after the August 2017 severance

hearing.

¶8 Our supreme court has ruled that in considering a motion to 

terminate a parent's rights based on incarceration, the superior court

should consider all relevant factors, including, but not limited 

to: (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
GABRIAL G. v. DCS, G.G.

Decision of the Court

4

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.

Michael J., 196 Ariz. at 251-52, ¶ 29.

¶9 The superior court here expressly listed and considered the 

Michael J. factors based on the evidence presented. In doing so, the court 

found that although a relationship between Father and G.G. "has existed to 

some degree," "given [the] gaps due to Father's repeated incarcerations, and 

the child's desire to have Father's parental rights severed [and] be adopted 

by her maternal grandmother," "the parent-child relationship [did not] have 

great strength."

¶10 The court further found that although Father communicated 

with G.G. from prison through letters and telephone calls, "that simply does 

not adequately compensate for Father's absence for a majority of the child's 

life." Finally, the court noted that the parental rights of G.G.'s mother had 

been terminated, and as a result, there was no other parent to provide the 

child with a normal home life: "Father has overwhelmingly not been there 

to provide a normal parental presence a child needs to grow and mature, to 

feel safe and secure and provided for financially, emotionally and 

otherwise."

¶11 These findings, which the record supports, sufficiently 

establish grounds for severance under § 8-533(B)(4). See Ariz. Dep't of Econ. 

Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 17 (App. 2014).

¶12 Father also argues the superior court erred by finding that 

severance was in G.G.'s best interests. Father argues he loves the child and 

demonstrated his ability to care for her when she was in his sole custody 

for a period of time in 2013. He contends that since his incarceration, he has 

matured and wants to take responsibility for her.

¶13 To support a best-interests determination, the evidence must 

show either that the child "would derive an affirmative benefit from 

termination or incur a detriment by continuing in the relationship." Ariz. 

Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). The 

superior court did not err by finding severance was in G.G.'s best interests 

based on evidence that she had "clearly expressed" a desire to be adopted 

by her maternal grandmother and that adoption would provide stability, 

permanence and the potential to maintain relationships with extended 

family members.
GABRIAL G. v. DCS, G.G.

Decision of the Court

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CONCLUSION

¶14 For the foregoing reasons, we affirm the order terminating 

Father's parental rights.