In Re Term of Parental Rights as to R.T.

IN THE ARIZONA COURT OF APPEALS DIVISION ONE IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.T. No. 1 CA-JV 26-0007 FILED 09-09-2026 Appeal from the Superior Court in Maricopa County No. JD43836 The Honorable Suzanne E. Cohen, Judge REVERSED AND REMANDED COUNSEL David W. Bell, Attorney at Law, Higley By David W. Bell Counsel for Appellant Arizona Attorney General’s Office, Tucson By Autumn Spritzer Counsel for Appellee DCS Joshua Fry Law, Phoenix By Joshua Fry Counsel for Appellee R.T.  IN RE TERM OF PARENTAL RIGHTS AS TO R.T. Opinion of the Court OPINION Vice Chief Judge David D. Weinzweig delivered the opinion of the Court, in which Presiding Judge Michael J. Brown joined. Judge Veronika Fabian concurs. W E I N Z W E I G, Vice Chief Judge: ¶1 An incarcerated parent has a constitutional right to visitation with her child before the State can terminate her parental rights based on the length of her felony sentence—unless visitation would endanger the child. At issue here is whether the superior court may deny visitation as futile because it cannot shorten the parent’s sentence or cure her addiction. We hold it cannot. Futility is not endangerment. ¶2 Mandy T. (“Mother”) appeals the superior court’s order terminating her parental rights to her child, R.T. (“Child”). We reverse and remand. FACTS AND PROCEDURAL BACKGROUND ¶3 By the time Child was born in March 2024, Mother had used opioids on and off for about sixteen years. Child tested positive for marijuana and fentanyl at delivery and remained in the hospital for sixteen days before her release to foster care. DCS removed Child, and the superior court later found her dependent. ¶4 From April to August 2024, DCS offered Mother substance abuse treatment and supervised visitation. Mother did not engage with the treatment, and she attended only six of eleven scheduled visits, but those visits went well, and the case manager acknowledged that Mother and Child “bonded well.” ¶5 Mother was incarcerated in September 2024 for violating probation on a prior felony drug conviction. She is scheduled for release in March 2027, but testified that she may be released as early as December 2026. ¶6 While in prison, Mother tried to remain in Child’s life. She stayed sober. She participated in substance-abuse programs. She sent letters and pictures to Child and asked for visitation at least twice. In January 2025, she wrote DCS: 2  IN RE TERM OF PARENTAL RIGHTS AS TO R.T. Opinion of the Court I’m trying my hardest from where I am to do everything required of me as well as everything I can do as a mother. My little girl means the world to me I want more than ANYTHING to be a good mother and raise my daughter. I’ll be out in December of 2026 as of now. I’m pushing myself to do every program I can to improve. [Child] is the most important [and] most amazing thing I have in my life. If there is a way for me to do better please tell me and I will do it. I’m doing parenting classes online untill [sic] the in person ones begin in a week or so. I’m doing Out Patient Drug Counseling currently. I’m present for court. I don’t know how to contact her father. How do I do better with communicating with the department? I want my visits from here. I’ll write every week. I’ll do anything to show I want my daughter back. ¶7 DCS never responded. Indeed, Mother heard nothing from her case manager while in prison. DCS first offered Mother visitation through a case aide in April 2025, seven months into her incarceration. Those visits lasted only four months before they stopped in August 2025 when the case aide left DCS. Mother attended every visit she was offered. And, according to the case aide, the visits went smoothly and Mother and Child bonded. ¶8 DCS moved to terminate Mother’s parental rights in August 2025 on two grounds: the length of her felony incarceration and fifteen months’ time-in-care. A termination hearing was held in December 2025. ¶9 In January 2026, the superior court denied termination on the fifteen-month ground because DCS had not made diligent efforts to reunify the family during Mother’s incarceration, but terminated Mother’s parental rights on the length-of-sentence ground, and found termination in Child’s best interests. ¶10 On the length-of-sentence ground, the superior court discussed the factors set forth in Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251–52, ¶ 29 (2000), and found that Child would be deprived of a 3  IN RE TERM OF PARENTAL RIGHTS AS TO R.T. Opinion of the Court normal home for a period of years. DCS conceded it did not make diligent efforts to preserve the relationship while Mother was incarcerated, and the court agreed: “[T]he Department failed to act diligently to provide Mother with visitation or to communicate with Mother after she was incarcerated.” The court excused that failure, however, on the ground that “neither the Department nor Mother could ameliorate the prolonged incarceration or Mother’s substance abuse issues through reunification services while Mother is in custody.” ¶11 Mother timely appealed. We have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1). DISCUSSION ¶12 We review an order terminating parental rights for an abuse of discretion and accept the superior court’s factual findings if reasonable evidence supports them. Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 478–79, ¶¶ 29–31 (2023). A court abuses its discretion when it misapplies the law. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474, ¶ 14 (2022). The meaning and application of A.R.S. § 8-533 present questions of law reviewed de novo. Brionna J., 255 Ariz. at 476, ¶ 17. ¶13 Parental rights may be terminated only if the superior court finds a statutory ground under § 8-533(B) by clear and convincing evidence and finds termination in the child’s best interests by a preponderance of the evidence. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018). ¶14 The superior court terminated Mother’s parental rights based on length-of-sentence grounds, which requires DCS to prove that a parent’s felony sentence “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). No bright-line rule marks when a sentence is long enough for termination. Michael J., 196 Ariz. at 251, ¶ 29. The court weighs all relevant factors, including the strength of the relationship when incarceration began, whether the relationship can be continued during the incarceration, the child’s age, the length of the sentence, the availability of another parent and the effect of the parent’s absence. Id. at 251–52, ¶ 29. No single factor is dispositive. Jessie D. v. Dep’t of Child Safety, 251 Ariz. 574, 579, ¶ 9 (2021). ¶15 Parents hold a constitutional interest in the care and custody of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). Because that liberty interest is fundamental, the State may sever the parent-child relationship “only in the most extraordinary circumstances, when all other 4  IN RE TERM OF PARENTAL RIGHTS AS TO R.T. Opinion of the Court efforts to preserve the relationship have failed.” Jessie D., 251 Ariz. at 581, ¶ 18 (citation omitted). ¶16 Prison does not erase that constitutional interest. Id. at ¶ 20. Because incarcerated parents “still possess a fundamental liberty interest in the care, custody, and management of their children,” DCS must “make diligent efforts to preserve the family by providing services to assist parents in maintaining a bond with their children.” Id. at 581–82, ¶ 20. These services are not a courtesy the State extends along the way. Reunification services are “a constitutional requirement under Santosky,” and “a necessary element of any state attempt to overcome” a parent’s fundamental liberty interest. Id. at ¶¶ 18, 21 (quoting Mary Ellen C. v. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 32 (App. 1999)). ¶17 Our supreme court has recognized, however, that a parent behind bars cannot maintain the parent-child bond in the ordinary way— visits, calls, letters and pictures are how the relationship survives the sentence. Id. at 581, ¶ 17. So when an incarcerated parent requests visitation, and visitation would not endanger the child, DCS must make reasonable efforts to provide it before terminating on the length-of-sentence ground. Id. at 582, ¶ 21. ¶18 Here, the superior court found that DCS failed to provide Mother visitation while she was incarcerated but excused that failure based on futility because visitation could not “ameliorate the prolonged incarceration or Mother’s substance abuse issues.” That was error for two reasons. ¶19 First, after the supreme court’s opinion in Jessie D., a long prison sentence is no longer reason enough to deny visitation to incarcerated parents. 251 Ariz. at 581–82, ¶¶ 19–20 (“Because parents incarcerated for a lengthy period still possess a fundamental liberty interest in the care, custody, and management of their children . . . , DCS must make diligent efforts to preserve the family by providing services to assist parents in maintaining a bond with their children.”). ¶20 The superior court considered Jessie D. here but reasoned it did not apply because “Mother did not have a relationship to maintain.” That misreads the duty. DCS must undertake reasonable efforts to help an incarcerated parent build and keep a bond she cannot form in the ordinary way. See id. at 581–82, ¶¶ 17, 20. That duty turns on the parent’s request, not on the strength of an existing bond: DCS must “initiate measures designed to address an incarcerated parent’s desire to maintain a parent- 5  IN RE TERM OF PARENTAL RIGHTS AS TO R.T. Opinion of the Court child relationship.” Id. at 582, ¶ 21. To hold otherwise would mean that the newer the bond, the less DCS must do to preserve it—contrary to what Jessie D. demands. See id. ¶21 Second, only child endangerment excuses DCS’s duty to provide visitation under the length-of-sentence ground. Id. at 582, ¶ 21. The superior court excused the duty for a different reason—futility— holding that DCS need not provide visitation because visitation cannot shorten Mother’s sentence or cure her addiction. But futility is not endangerment. DCS never sought to suspend visitation on the ground of endangerment, and the court never found that visitation would endanger Child. ¶22 Futility excuses reunification services only where the ground is a condition, and only when DCS proves by clear and convincing evidence that services would not remedy that condition. See Mary Ellen C., 193 Ariz. at 192–93, ¶¶ 34, 42. For example, when reunification services cannot overcome mental illness or chronic substance abuse under § 8-533(B)(3), the law does not require them. See id.; Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50, ¶ 18 (App. 2004). But the length-of-sentence ground is not a condition—it is a fixed span of absence. And visitation is meant to keep the parent-child relationship alive during that absence. Whether Mother can overcome her addiction, or how long her sentence runs, tells us nothing about whether a visit, a call or a letter can keep a parent and child in each other’s lives. ¶23 The parties disagree over what follows from the superior court’s error. Mother contends the superior court should not have reached the Michael J. factors because DCS deprived her of a constitutional right. DCS relies on Jessie D. to argue the court properly reached the Michael J. factors and that its visitation failure did not change the balance. We need not decide whether reasonable efforts to provide visitation operate as an absolute prerequisite to the Michael J. analysis because Jessie D. does not excuse the breach here. ¶24 In Jessie D., a psychologist determined that father’s letters to his children and phone calls with his children “were inappropriate based on the substance of the conversations and the children’s undesirable behaviors after communicating with Father.” 251 Ariz. at 582, ¶ 24. For that reason, DCS did not forward father’s letters to the children and did not permit father to call his children. Id. Father argued that was wrong, and the supreme court recognized that “DCS should have informed Father about its decision not to forward his letters or allow phone calls with the 6  IN RE TERM OF PARENTAL RIGHTS AS TO R.T. Opinion of the Court children so he could have challenged this decision, or written additional letters that did not discuss the topics DCS found inappropriate.” Id. Even so, the supreme court affirmed the termination of father’s parental rights because “this omission did not affect the propriety of the court’s decision . . . given the totality of the record.” Id. ¶25 This is not Jessie D. There, DCS satisfied its duty to offer visitation; indeed, the father conceded three times that DCS had provided visitation and transportation services. Id. at ¶ 23. Here, DCS failed to arrange visitation between Mother and Child for the bulk of her incarceration. There, DCS’s conduct was justified because communication between the father and child would have endangered the child, and the excusable omission did not affect the propriety of the termination given the full record. See id. at ¶ 24. Here, no psychologist and no finding justified the breach. DCS offered a single excuse—futility—and it fails as a matter of law, so the breach stands unexcused, and no view of the full record cures its effect on the propriety of the termination. ¶26 We reverse the order terminating Mother’s parental rights and remand for DCS to develop a reasonable reunification plan and provide Mother with visitation. See In re Precious J., 42 Cal. App. 4th 1463, 1477–80 (1996) (reversing and remanding for the State “to develop a reunification plan consistent with the views expressed in this opinion” where the agency “never . . . scheduled or arranged a single visit” for a mother who sought visitation). Nothing prevents DCS from moving anew for termination after it provides visitation services to Mother. CONCLUSION ¶27 Reversed and remanded. 7  IN RE TERM OF PARENTAL RIGHTS AS TO R.T. Fabian, J., concurring F A B I A N, J., concurring, ¶28 I write separately to voice my concerns about the “futility” doctrine as described in Paragraph 22 of the majority’s decision. As described in that paragraph, this Court has previously held that “futility” is an exception to the constitutional requirement of reunification services if the basis for the termination is mental illness or chronic substance abuse. Supra ¶ 22. However, I disagree with those decisions because the Arizona Supreme Court has never adopted a “futility” exception to a parent’s constitutional right to services in any context. And the concept of “futility” appears nowhere in Arizona’s termination statute—A.R.S. § 8-533. Regardless, this issue is not before this Court as there is no question the constitutional right to reunification services exists here, where termination is based on length-of-incarceration grounds. See Jessie D., 251 Ariz. at 581- 82, ¶¶ 18-21. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 8