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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES V.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY, C.V., J.V., 

TOHONO O’ODHAM NATION, 

Appellees.

No. 1 CA-JV 20-0050 

Appeal from the Superior Court in Maricopa County

No. JD36698

The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

John L. Popilek, PC, Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Dawn Rachelle Williams

Counsel for Appellee Department of Child Safety

Law Office of Justin Fernstrom

By Justin Fernstrom

Counsel for Appellee Tohono O'odham Nation

FILED 10-6-2020
CHARLES V. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.

W E I N Z W E I G, Judge:

¶1 Charles V. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to C.V. and J.V. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Mother are the biological parents of C.V., born in 

2004, and J.V., born in 2012.1 Mother is a member of the Tohono O’odham 

Nation (“Nation”), and her children are eligible for tribe membership. The 

Indian Child Welfare Act therefore governs this proceeding. See 25 U.S.C. 

§§ 1902, 1903. 

¶3 Father was on probation for drug and weapons charges when 

C.V. was born. Before C.V. turned three, Father had served two short jail 

sentences and committed several probation violations. A year after J.V. was 

born, Father was arrested for assaulting Mother and for possessing 

marijuana. He pleaded guilty to domestic violence and drug charges and 

was placed on probation.

¶4 The couple soon separated. Father moved with the children

into his mother’s house. The children’s Mother was rarely present. Father

was arrested three more times between 2014 and 2016 for possession of 

heroin and violating probation. Father failed to appear in court and a 

warrant was issued for his arrest. 

¶5 Father neglected the medical, dental and educational needs of 

both children. C.V. was often required to fill the parental void and care for 

his younger sibling, including feedings, diaper changes and getting J.V. 

ready for school. Both children fell behind academically and had excessive 

school absences. 

1 The juvenile court also severed Mother’s parental rights, but she is 

not a party to this appeal. 
CHARLES V. v. DCS, et al.

Decision of the Court

3

¶6 Police again arrested Father in July 2018 after finding 

methamphetamine, heroin and a firearm in his home during a search 

related to a drug trafficking investigation. Police also learned that Father

had an outstanding arrest warrant. Father was sentenced to 2.5 years in 

prison after pleading guilty to possession or use of narcotic drugs. Father 

left both children with his sister (“Aunt”) and reported for his sentence in 

November 2018. Aunt soon contacted DCS because J.V. became “really 

sick” and Father had not authorized her to obtain medical treatment for the 

children. Mother could not be located. 

¶7 DCS filed a dependency petition in November 2018. The 

juvenile court found both children dependent in May 2019 because neither 

parent was “willing . . . to meet their basic needs,” citing Father’s “long 

history” of substance abuse. Having established paternity, DCS told Father 

how he could achieve reunification. The Nation was invited to “all 

meetings” and updated on the children’s status. 

¶8 Both children attended individual therapy to address the 

trauma from living with Father. Information also surfaced that Father 

physically abused C.V. The children also enrolled in tutoring. Aunt 

encouraged them to explore their Native American heritage and worked 

with the Nation toward enrollment. She also obtained much-needed dental 

care for J.V.

¶9 The children did not want to visit Father in prison and no 

visits were arranged. The children had no “bond” with Father and “d[id] 

not wish to return to” him. Father still spoke with the children over the 

telephone every few weeks. Aunt later terminated the calls because of

Father’s “inappropriate” conduct. 

¶10 DCS moved to terminate Father’s parental rights to both 

children based on the length of incarceration for a felony offense under 

A.R.S. § 8-533(B)(4). Father moved to have his sister appointed permanent 

guardian. The juvenile court held a contested one-day severance and 

guardianship adjudication in late January 2020. The Nation was 

represented by counsel. Five witnesses testified, including Father, Mother, 

Aunt and the case managers from both DCS and the Nation. The court then 

terminated Father’s parental rights to C.V. and J.V., finding that DCS 

proved the length of felony sentence statutory ground and that termination 

was in the children’s best interests, emphasizing that it offered muchdesired “permanency and stability.” The court also found, under ICWA,

that active but unsuccessful efforts were made to prevent the breakup of 

the Indian family, and that Father’s continued custody would likely cause 
CHARLES V. v. DCS, et al.

Decision of the Court

4

serious emotional or physical damage to the children. Father timely 

appealed. We have jurisdiction under A.R.S. §§ 8-235 and 12-120.21. 

DISCUSSION

¶11 Parental rights are properly terminated when the juvenile 

court finds clear and convincing evidence of a statutory ground for 

termination under A.R.S. § 8-533(B) and a preponderance of the evidence 

shows that termination is in the child’s best interests. Valerie M. v. Ariz. 

Dep’t of Econ. Sec., 219 Ariz. 331, 334, ¶ 9 (2009). ICWA requires two more 

findings here. The court must find “that active efforts have been made to 

provide remedial services and rehabilitative programs designed to prevent 

the breakup of the Indian family and that these efforts have proved 

unsuccessful.” 25 U.S.C. § 1912(d); accord Ariz. R. P. Juv. Ct. 66(C). The 

court must also find evidence beyond a reasonable doubt that the continued 

custody of the children by the parent is likely to result in serious emotional 

or physical damage to the child. 25 U.S.C. § 1912(f). 

¶12 We affirm a severance order of the juvenile court unless the 

record contains no reasonable evidence to support its factual findings. 

Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286-87, ¶ 16 (App. 2016). We 

view evidence in the light most favorable to sustaining the juvenile court’s 

findings, Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13 (App. 

2011), and do not reweigh the evidence on appeal, Yvonne L. v. Ariz. Dep't 

of Econ. Sec., 227 Ariz. 415, 422, ¶ 27 (App. 2011).

A. Length of Felony Sentence Statutory Ground

¶13 Father first challenges the superior court’s finding of statutory 

grounds under A.R.S. § 8-533(B)(4); he does not contest the court’s bestinterest findings. A juvenile court may terminate a parent’s rights if it finds 

by clear and convincing evidence “[t]hat the parent is deprived of civil 

liberties due to the conviction of a felony . . . if the sentence of that parent is 

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

of years.” A.R.S. § 8-533(B)(4). A “normal home” refers to the incarcerated 

parent’s obligation to provide a home in which that parent has a presence, 

not a “normal home environment created by [others].” Maricopa Cty. Juv. 

Action No. JS-5609, 149 Ariz. 573, 575 (App. 1986). The statute does not 

define “a period of years” and Arizona courts have not identified a 

definitive milepost at which “a sentence is sufficiently long to deprive a 

child of a normal home for a period of years.” Michael J. v. Ariz. Dep’t of 

Econ. Sec., 196 Ariz. 246, 251, ¶ 29 (2000). Each case instead depends on its 

own facts. Id.
CHARLES V. v. DCS, et al.

Decision of the Court

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¶14 The Arizona Supreme Court has articulated six factors to 

determine whether a parent’s incarceration compels termination of parental 

rights. Id. at 251-52, ¶ 29. These non-exclusive factors are: (1) the length 

and strength of any pre-incarceration relationship between parent and 

child, (2) how well 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 that 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. Id.

¶15 The record contains reasonable evidence to support the 

juvenile court’s decision:

¶16 Length and strength of pre-incarceration relationship. The 

record reflects that Father had a poor and sporadic pre-incarceration 

relationship with the children. He missed much of their childhood 

handling his “extensive” legal troubles. The children described no preincarceration “bond” with Father and “d[id] not wish to return to” him.

The record shows that Father neglected the children for years, ignoring 

their basic medical and education needs. The record also shows that Father 

inflicted trauma on the children and physically abused C.V. 

¶17 Relationship during incarceration. The children never visited 

Father in prison. They asked not to. Father wrote one letter to the children 

while incarcerated. He had several phone calls with the children, but Aunt 

terminated the calls for a time because of Father’s inappropriate behavior.

Nor has Father provided any financial support. 

¶18 Age of children, length of absence and deprivation of normal 

home. Although not voluminous in absolute terms, Father’s 30-month 

sentence represents a substantial and meaningful period in the children’s 

development. C.V. will turn from 13 to 15 years old. J.V. will turn from 6 

to 8 years old. And Father points to his earliest potential release date, but

he must still enter drug rehabilitation afterward, which adds more time and 

uncertainty to any reunification. See Christy C. v. Ariz. Dep’t of Econ. Sec., 

214 Ariz. 445, 451, ¶ 18 (App. 2007). Nor did the record show that Father’s 

return would mean a normal home.

¶19 Available parent. Mother abandoned the children. The 

children have no parent to provide a normal home life in Father’s absence.

¶20 Father counters with conflicting evidence that supports his 

position, but we do not reweigh the evidence on appeal. Alma S. v. Dep’t of 
CHARLES V. v. DCS, et al.

Decision of the Court

6

Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018). Father also contends that 2.5 

years is a “relatively short” prison sentence. Compared to what he faced, 

that may be true. But a prison term of 2.5 years can support termination 

based on length of felony sentence. See Jeffrey P., 239 Ariz. 212, 214-15, ¶¶ 

7, 10, 13-14 (App. 2016) (affirming termination based on a 2.5-year 

sentence). Our decision also must account for historical facts and particular 

circumstances, including Father’s sporadic and traumatic presence in the 

children’s lives. Michael J., 196 Ariz. at 251, ¶ 29 (“In some instances, 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.”).

B. Active Efforts (ICWA)

¶21 Father contends that DCS did not provide clear and 

convincing evidence of “active efforts” to prevent an Indian family from 

breaking up. Father has shown no abuse of discretion. The Nation’s case 

manager testified that active efforts had been made but did not succeed.

The record also reflects active yet unsuccessful efforts, including the 

placement of siblings in a family home, the Nation’s active role, children’s 

counseling and phone contact while incarcerated. 25 C.F.R. § 23.2 (relevant 

efforts include invitations for child’s tribe to participate, locating the child 

with family members and keeping siblings together). The Nation also 

worked with Aunt about tribal membership and Aunt encouraged the 

children to explore their heritage. 

CONCLUSION

¶22 We affirm.