Background
Mandy T.’s child, R.T., was born in March 2024 and tested positive for marijuana and fentanyl. The Department of Child Safety removed the child and initially offered Mother substance-abuse treatment and supervised visitation. Mother did not engage in treatment and attended six of eleven scheduled visits, but the visits went well and Mother and Child bonded.
Mother was incarcerated in September 2024 for violating probation on a felony drug conviction. While incarcerated, she participated in substance-abuse and parenting programs, sent letters and pictures to Child, and repeatedly requested visitation. DCS did not respond and waited seven months to arrange prison visits. Those visits went smoothly but ended four months later when the case aide left DCS. The superior court found that DCS had not diligently provided reunification services, yet terminated Mother’s rights under Arizona’s length-of-felony-sentence ground because visitation could not shorten her incarceration or cure her substance-abuse problems.
The Court’s Holding
The Court of Appeals reversed. When an incarcerated parent requests visitation, DCS must make reasonable efforts to provide it before seeking termination based on the length of the parent’s sentence, unless visitation would endanger the child. That obligation includes helping a parent build and preserve a bond and does not depend on the strength of the relationship when incarceration begins.
The superior court therefore erred by excusing DCS’s failure as futile. Visitation under the length-of-sentence ground is intended to preserve the parent-child relationship during a fixed period of absence; it need not shorten the sentence or cure addiction. Because DCS did not assert, and the superior court did not find, that visitation would endanger Child, the failure was unexcused. The court remanded for DCS to develop a reasonable reunification plan and provide visitation, while noting that DCS may move again for termination after providing those services.
Judge Veronika Fabian concurred separately. She agreed that Mother had a constitutional right to reunification services here but expressed disagreement with prior Arizona appellate decisions recognizing futility as an exception to that right in termination cases involving mental illness or chronic substance abuse, observing that the Arizona Supreme Court has not adopted such an exception and that the termination statute does not mention futility.
Key Takeaways
- An incarcerated parent who requests visitation must receive reasonable visitation efforts before termination on length-of-sentence grounds unless visitation would endanger the child.
- DCS’s duty applies even when the parent-child bond is new or limited; the agency must help the parent build as well as maintain that bond.
- Futility based on an inability to shorten incarceration or cure addiction does not excuse the visitation requirement in a length-of-sentence case.
Why It Matters
The decision limits Arizona’s ability to terminate an incarcerated parent’s rights based on sentence length after failing to facilitate requested contact. Agencies and juvenile courts must focus on whether visitation would endanger the child, not whether visitation can remedy the incarceration or an underlying addiction.
The separate concurrence also flags a broader unresolved question about whether Arizona law permits a futility exception to constitutionally required reunification services in cases based on mental illness or chronic substance abuse.