A Parent’s Constitutional Right to Visitation and Association…. from Prison?

By Stephanie Deskins.

On September 22, 2020, the Arizona Supreme Court heard oral arguments in the case of Jessie D. v Department of Child Safety, F.V., M.D., M.D., C.D. The juvenile court terminated Jessie’s parental rights to his four children because he is currently serving seven years in prison. On appeal, the Arizona Court of Appeals agreed with the juvenile court’s decision. The Arizona Supreme Court granted Jessie’s Petition for Review, and their upcoming decision could impact the parental rights of other incarcerated individuals and clarify the extent of DCS’ legal obligation to encourage and support the reuniting of families.  

THE FACTS

After one of Jessie’s children accidentally burned down their family home in August of 2016, his four children and their mother stayed at a UMOM homeless shelter. Because Jessie had an outstanding warrant, he was not allowed to stay with his family. Despite this, Jessie slept outside his children’s window in an abandoned car to be near them. In December of 2016, Jessie was arrested and pled guilty to the charges.

"Prison bars" by Fernando Silveira is licensed under CC BY-NC-SA 2.0

While in jail, Jessie remained in contact with his four children and received visits from them. In August of 2017, DCS filed a dependency petition after learning that the children’s mother was homeless and in an abusive relationship with her significant other. A month later, the juvenile court found all four children dependent on the state as to both parents. Jessie, still incarcerated, requested visitation and telephone calls with his children, and he requested photographs of his children both at the Pretrial Conference and at a Report and Review Hearing. Both times, the juvenile court ordered DCS to follow up on Jessie’s requests.

In April of 2018, DCS decided to terminate Jessie’s parental rights to allow his children to be adopted. Jessie once again requested meaningful, regular contact with his four children. But by May, DCS placed Jessie’s four children in a foster home and did not facilitate any visits between Jessie and his children.

After unilaterally consulting with a psychologist, DCS informed Jessie that visitation with his children would be inappropriate. While Jessie did not push for visitation after DCS’ psychologist’s recommendation, he did write letters to his children from prison. DCS screened Jessie’s letters and did not allow his children to read his letters. DCS decided his letters were “inappropriate” because Jessie wrote to his children that he was innocent, that he would get out of prison, that the children should look out for each other, and that their family would get back together. Jessie repeated these “inappropriate” sentiments to his children during phone calls, causing DCS not allow any further calls between Jessie and his children. By June of 2018, Jessie requested that his parents be allowed to bring his children, if they wanted, to visit him. Once again, the juvenile court asked DCS to follow up on Jessie’s requests. Once again, DCS did not allow Jessie any contact with his children.

DCS, instead, moved to terminate Jessie’s parental rights due to the length of his prison sentence. The juvenile court severed Jessie’s parental rights and held that DCS had no requirement to help keep the children in contact with an incarcerated parent serving a prolonged sentence since the nature of such a relationship is not one that can be ameliorated.

LEGAL STANDARD 

In addition to considering the best interests of the child, the juvenile court reviewed the six factors from Michael J. v. Arizona Department of Economic Security, a previously decided Arizona Supreme Court case from 2000,in determining the strength of the relationship between Jessie and his children. The six factors the juvenile court considered when determining the strength of Jessie’s relationship with his children included: (1) the length and strength of the relationship at the time of incarceration, (2) the extent that the relationship could continue and grow during the parent’s incarceration, (3) the child’s age and the correlation between the child’s age and the potential that the child will be deprived of a normal home, (4) the length of the sentence, (5) the availability of the child’s other parent, and (6) the effect of depriving the child of their parent.

JUVENILE COURT’S APPLICATION OF THE MICHAEL J. FACTORS

The juvenile court found that Jessie’s relationship with his children was not strong because before he was arrested, he did not live with his children and he was not the children’s primary caretaker. The court also found it unlikely that Jessie could maintain any meaningful or regula contact with his children while incarcerated. Additionally, because of the children’s younger ages, ranging from one-and-a-half to seven years when Jessie was first sentenced, the family would be unable to maintain a normal parent-child relationship. The juvenile court also found that the children’s mother was not available, as her rights had also been terminated, and that Jessie’s incarceration that did not allow for realistic reunification with his children until 2023. Finally, the juvenile court found if Jessie’s parental rights were not taken away, that this would be detrimental to his children.

ARIZONA SUPREME COURT ORAL ARGUMENTS

Jessie’s lawyer argued that DCS acted negligently by denying Jessie his fundamental right of visitation and association with his children. However, Vice Chief Justice Ann A. Scott Timmer questioned whether DCS’ potential failure in not allowing Jessie visitation with his children had any impact on the factors from Michael J.that the lower court relied on to terminate Jessie’s parental rights. Jessie’s lawyer argued against this and stated that the juvenile court’s finding that Jessie did not have a strong relationship with his children was factually incorrect, noting Jessie slept under his children’s window to be close to them. Justice Clint Bolick agreed in one respect with Jessie’s lawyer that previous Arizona case law has found that DCS does, in fact, have a responsibility and legal obligation in some cases to facilitate rehabilitative services, like contact, between a parent and their children.

Conversely, the attorney for DCS argued that Jessie lacked a bond with his children and acted more like a babysitter than a parent, agreeing with the juvenile court’s finding that Jessie did not have a strong relationship with his children. However, Justice Andrew Gould questioned if Michael J. perhaps set an impossible standard for incarcerated parents– asking what an incarcerated parent, like Jessie, should do when DCS repeatedly seemingly denies a parent’s attempt to communicate with their child. The attorney for DCS reiterated that the Court of Appeals properly weighed all the factors when it confirmed the juvenile court’s decision to terminate Jessie’s parental rights and that the factors were not inherently stacked against incarcerated parents, despite Justice Bolick and Justice Timmer questioning if the juvenile court’s finding that “frequent contact is virtually impossible in a prison setting” potentially implied otherwise.

CONCLUSION

As Jessie’s lawyer and Judge Christopher Staring noted, severing a parent’s constitutional rights should only be applied as an extraordinary measure. Despite this, it is also likely that in Jessie’s case, even if the Arizona Supreme Court found that the juvenile court incorrectly applied the Michael J. factors and even if DCS had allowed Jessie contact with his children, that would have not been enough to overcome the fact that Jessie was facing seven years in prison away from his children. But perhaps that was the point being made by several of the Justices– that the current legal standard in the State of Arizona evaluating an incarcerated parent’s relationship with their child(ren) is inherently biased. The Arizona Supreme Court’s opinion once issued, will hopefully shed light on what is perhaps an unjust standard and clarify DCS’ affirmative duties to reconnect parents with children and promote family reunification.

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By Stephanie Deskins.

J.D. Candidate, 2021

Stephanie Deskins is a third-year law student, Staff Writer, and Sustainability Law Research Fellow from Bremen, Ohio. She received her B.A. in Philosophy and her B.S. in Political Science from Arizona State University. In her free time, she enjoys spending time with her five dogs, cheering on her Ohio State Buckeyes, and volunteering as a Girl Scout leader. She hopes to practice Family Law and Estate Planning.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.