Our client, Ollie Loya, has sought our firm's representation in a termination of parental rights matter. Mr. Loya was released last year from prison after serving a two-year sentence for battery. He was out of custody for six months before being convicted of aggravated battery (with a deadly weapon). His release date would be in six years.

Mr. Loya's son was 18 months old when Mr. Loya was first incarcerated. He was 3- years old at the time of Mr. Loya's most recent release. The son would be ten years old when Mr. Loya is released from the most recent conviction.

The mother of the child had custody of Mr. Loya's son while Mr. Loya was first incarcerated. The Department of Child Safety (DCS) recently took the child from the mother because of abuse and neglect charges. DCS initiated termination proceedings against the mother and Mr. Loya, and the mother voluntarily surrendered her rights.

Mr. Loya was present in the home with the child prior to the first period of incarceration. However, there are multiple police reports indicating violence between Mr. Loya and his son's mother, and Mr. Loya has candidly admitted there was violence in front of the child in that period.

DCS has presented us with documentation that Mr. Loya has not provided financial support for his son since his first incarceration. Mr. Loya has provided us with documentation of sending letters and cards to the child while he was incarcerated. DCS has a paternal family relative willing and approved to adopt the child.

Please analyze whether there are sufficient facts to lead a court to find clear and convincing evidence there is a basis to terminate Mr. Loya's parental rights to his son.

To complete Part 1, draft and submit the Header, Statement of Assignment, Issue, Brief Answer, and Facts.

Rule of Law:Arizona statutes section 8-533(B) allows a superior court to terminate parental rights upon clear and convincing evidence of at least one of several grounds listed in the statute. Section 8-533(B)(4) allows termination on the basis "that the parent is deprived of civil liberties due to the conviction of a felony if the felony of which the parent was convicted is of such a nature as to prove the unfitness of that parent to have future custody and control of the child including . . . the sentence of that parent is of such a length that the child will be deprived of a normal home for a period of years."

Case Law: A court opinion discussing length incarceration as the basis for termination isErik T. v. Department of Child Safety,S.T., 1-CA-JV-2015-0274 (filed Jan. 28, 2016) (seeAppendix A of the textbook).

ERIK T., Appellant,v. DEPARTMENT OF CHILD SAFETY, S.T., Appellees.

No. 1 CA-JV 15-0274 Filed January 28, 2016

Memorandum Decision

JOHNSEN, Judge.

1 Erik T. ("Father") appeals the superior court's order terminating his parental rights. For the reasons that follow, we affirm.

Facts and Procedural Background

2 Father is the parent of an Indian child ("Child") born in April 2010.Father was incarcerated from November 2010 until October 2012. Shortly after his release, Father was convicted of aggravated assault and sentenced to 10.5 years incarceration beginning in December 2012. The Department of Child Safety ("DCS") took Child and his two half-siblings into custody in September 2013 because of allegations of substance abuse and neglect by their mother ("Mother").The superior court found Child dependent as to Mother and Father in December 2013. In March 2015, DCS moved to terminate parental rights to Child and his two half-siblings. The court terminated Mother's parental rights; she is not a party to this appeal. After a trial, the court terminated Father's parental rights due to his incarceration, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(4) (2016).

3 Father timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, A.R.S. 8-235(A)(2016), 12-2101 (2016) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.

Discussion

A.Legal Principles.

4 The right to custody of one's child is fundamental but 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 set out in A.R.S. 8-533(B).Michael J., 196 Ariz. at 249, 12. Additionally, the court must find by a preponderance of the evidence that termination is in the child's best interests.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). Because the superior court is in the best position to "weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings," we will accept its findings of fact unless no reasonable evidence supports them.See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, 4 (App.2002).

B.Best-Interests Determination Under 8-533(B).

5 On appeal, Father does not contest the superior court's finding by clear and convincing evidence of facts permitting severance under A.R.S. 8-533(B)(4) (parent "deprived of civil liberties due to the conviction of a felony" that "is of such length that the child will be deprived of a normal home for a period of years"). Father instead takes issue with the court's finding that severance is in Child's best interests.SeeA.R.S. 8-533(B). A best-interests finding may be supported by evidence of an affirmative benefit or a detriment to the child if the relationship were to continue.Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 557 (App.1997). Being available for adoption is an affirmative benefit that can support a finding that termination is in a child's best interests.See Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App.1994). Whether severance is in a child's best interests is a question of fact, and we view the evidence and draw all reasonable inferences from the evidence in favor of supporting the superior court's findings.Jesus M., 203 Ariz. at 282, 13.

6 Father argues insufficient evidence supported the court's finding that termination is in Child's best interests. He cites the testimony of an Indian Child Welfare Act ("ICWA") expert, who stated guardianship would be preferable to termination. Notwithstanding Father's contentions, however, the court heard evidence that Child is adoptable and would benefit from being adopted. The DCS case manager testified Child and his two half-siblings currently are placed with paternal relatives of Child's half-sibling and that the current placement is willing to adopt all three children as a group. She testified Child would benefit from severance, as it would provide him with permanence and stability. Accordingly, sufficient evidence supported the court's determination that termination of Father's rights would be in Child's best interests.

***

Conclusion

16 Because sufficient evidence supported the superior court's order terminating Father's parental rights, we affirm.