Jones v. Hon Anderson ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JENNIFER JONES, Petitioner,
v.
THE HONORABLE ARTHUR ANDERSON, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,
DEPARTMENT OF CHILD SAFETY; ADONISE W.; FAEGIN W.; F.W.;
A.W., Real Parties in Interest.
No. 1 CA-SA 18-0169
FILED 8-23-2018
Petition for Special Action from the Superior Court in Maricopa County
No. JD529834
The Honorable Arthur T. Anderson, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Horne Slaton PLLC, Scottsdale
By Thomas C. Horne (argued), Kristin M. Roebuck Bethell, Ida Araya
Counsel for Petitioner
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams (argued)
Counsel for Real Party in Interest Department of Child Safety
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Real Parties in Interest F.W., A.W.
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Real Party in Interest Faegin W.
Gary Alan Wieser Attorney at Law, Phoenix
By Gary A. Wieser
Counsel for Real Party in Interest Adonise W.
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined.
M c M U R D I E, Judge:
¶1 Jennifer Jones seeks special action relief from superior court
orders denying her motions to intervene in a dependency action filed by
the Department of Child Safety (“DCS”) regarding two children, A.W. and
F.W. (the “Children”), whom Jones had foster-parented for 22 months.
Jones also seeks relief from the superior court’s order finding Jones and her
attorneys violated Arizona Revised Statutes (“A.R.S.”) section 8-807(U). For
the following reasons, we accept jurisdiction and grant relief, holding the
superior court abused its discretion in how it denied Jones’s motions to
intervene, and by granting the § 8-807(U) motion without allowing Jones
and her attorneys the opportunity to respond.
FACTS AND PROCEDURAL BACKGROUND
¶2 In March 2016, due to abuse and neglect, DCS petitioned the
superior court to find the Children dependent as to their biological mother
and father, took temporary physical custody of the Children, and placed
the Children in Jones’s care. The superior court subsequently found the
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Children dependent as to both parents in June 2016. The Children
continued to live with Jones, but in September 2017, DCS moved to change
physical custody of the Children to the Children’s paternal aunt (“Aunt”).
After an evidentiary hearing in November 2017, the superior court ordered
the Children transitioned to Aunt’s custody. Jones was present at the
change in physical custody hearing, but was not represented by counsel
and did not participate. By January 21, 2018, the Children were living
full-time with Aunt.
¶3 On January 26, 2018, Jones petitioned the superior court to
terminate the Children’s biological parents’ rights. The same day, she also
moved to intervene in DCS’s ongoing dependency case against the
Children’s parents. Both DCS and the Children’s father objected to Jones
intervening in the DCS action. The superior court denied Jones’s motion to
intervene, finding “[i]ntervention is not appropriate. In this case, foster
placement has [the] right to participate in review proceedings [under] ARS
§ 8-847.”
¶4 In May 2018, Jones amended her petition to terminate after
learning the biological parents intended to consent to the Children’s
adoption. She also filed a renewed motion to intervene. Approximately one
month later, Jones supplemented her renewed motion to intervene to attach
an affidavit of a private investigator Jones hired to investigate Aunt. DCS,
the Children’s father, and the Children’s guardian ad litem objected to Jones
intervening in the DCS action. The superior court summarily denied Jones’s
renewed motion to intervene on June 22, 2018. 1
¶5 On June 27, 2018, the case plan in the dependency action was
changed to severance and adoption, and DCS moved to terminate the
Children’s parents’ rights the following day. After DCS moved to
terminate, the superior court dismissed Jones’s termination petition. Jones
then petitioned this court for special action review. 2
1 Jones’s motion also included a “request for compliance with A.R.S.
§ 8-113” and an “alternative motion to change physical custody.” The court
denied the motion in its entirety.
2 While the special action was pending, the superior court terminated
the Children’s biological parents’ rights. Nonetheless, we have considered
the biological parents’ positions raised in the responses to the special action
petition.
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SPECIAL ACTION JURISDICTION
¶6 An order denying a motion to intervene is an appealable final
order. Bechtel v. Rose, 150 Ariz. 68, 71 (1986). However, Arizona courts have
repeatedly accepted special action jurisdiction of juvenile cases involving
the denial of a motion to intervene because the petitioner has no “equally
plain, speedy, and adequate remedy by appeal.” See Ariz. R.P. Spec. Act.
1(a); see also Bechtel, 150 Ariz. at 72; Allen v. Chon-Lopez, 214 Ariz. 361, 362,
¶ 1 (App. 2007); J.A.R. v. Superior Court, 179 Ariz. 267, 273 (App. 1994);
ADES v. Superior Court (Alagna), 173 Ariz. 26, 27 (App. 1992). Accordingly,
we accept special action jurisdiction.
DISCUSSION
¶7 Jones argues the superior court erred by denying her motions
to intervene in DCS’s dependency action against the Children’s biological
parents and by finding she and her attorneys violated § 8-807(U).
A. The Superior Court Erred in How It Denied Jones’s Motions to
Intervene.
¶8 Jones argues the superior court abused its discretion by
denying her motions to intervene based upon our supreme court’s decision
in Bechtel claiming the court was obligated to make specific findings. See
Bechtel, 150 Ariz. at 73–74. DCS counters the superior court did not err by
denying Jones intervention because the record shows the court considered
Bechtel and because Jones had the right to participate in the proceedings as
a foster parent under A.R.S. § 8-847 and that right was not abridged. We
agree with Jones that the superior court abused its discretion by denying
Jones’s motions to intervene without making the required Bechtel findings.
¶9 Jones moved to intervene in DCS’s dependency action based
upon Arizona Rule of Civil Procedure 24(b). Under Rule 24(b)(1), the
superior court “may permit anyone to intervene who: (A) has a conditional
right to intervene under a statute; or (B) has a claim or defense that shares
with the main action a common question of law or fact.” “In exercising its
discretion over permissive intervention, the court must consider whether
the intervention will unduly delay or prejudice the adjudication of the
original parties’ rights.” Ariz. R. Civ. P. 24(b)(3). Rule 24 “is remedial and
should be liberally construed with the view of assisting parties in obtaining
justice and protecting their rights.” Bechtel, 150 Ariz. at 72 (quoting Mitchell
v. City of Nogales, 83 Ariz. 328, 333 (1958)). We review the superior court’s
ruling on a motion to intervene for an abuse of discretion. Roberto F. v.
ADES, 232 Ariz. 45, 49, ¶ 17 (App. 2013) (as amended). An abuse of
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discretion occurs if the superior court commits an error of law while
exercising its discretion, Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005),
and a summary denial of a motion to intervene is an abuse of discretion,
William Z. v. ADES, 192 Ariz. 385, 389, ¶ 22 (App. 1998).
¶10 If either condition for intervention under Rule 24(b) has been
satisfied in a juvenile proceeding, the superior court “must determine
whether the party opposing intervention has made a sufficient showing
that intervention is not in the child[ren]’s best interest.” Allen, 214 Ariz. at
365, ¶ 12; see also Bechtel, 150 Ariz. at 73. In making that determination, the
court must consider a number of factors identified in Bechtel. Allen, 214 Ariz.
at 365, ¶ 12. Those factors are:
(1) “the nature and extent of the intervenors’ interest” in the
dependency case, (2) the intervenors’ “standing to raise
relevant issues” in the dependency case, (3) the legal position
the interveners “seek to advance, and its probable relation to
the merits of the case,” (4) “whether the interveners’ interests
are adequately represented by other parties” already present
in the litigation, (5) “whether intervention will prolong or
unduly delay the litigation,” and (6) “whether parties seeking
intervention will significantly contribute to full development
of the underlying factual issues in the suit and to the just and
equitable adjudication of the legal questions presented.”
Roberto F., 232 Ariz. at 52, ¶ 33 (quoting Bechtel, 150 Ariz. at 72).
¶11 This court has previously held a superior court will not abuse
its discretion by permitting foster parents to intervene if it concludes that
they share common issues of law or fact with a pending DCS-initiated case.
Roberto F., 232 Ariz. at 52–54, ¶¶ 32, 40. In this case, in its order denying
Jones’s first motion to intervene, the superior court did not address Bechtel
but found “[i]ntervention is not appropriate. In this case, foster placement
has [the] right to participate in review proceedings [under] ARS § 8-847.”
¶12 DCS argues the court correctly found that as a foster parent,
Jones had the right to participate in review proceedings in the dependency
action, that Jones “participated in numerous” hearings, and that the
superior court’s orders did not abridge that right. Under § 8-847(B), “[a]ny
foster parent in whose home the child resided within the last six months”
must be given notice of periodic review hearings held after a dependency
disposition hearing and has “the right to participate in the proceeding.”
(Emphasis added). At the time the superior court denied Jones’s first
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motion to intervene, the Children had been living with Jones within the last
six months. Thus, the court was correct in finding she had a right to
“participate” in the proceedings and there is no evidence in the record Jones
was denied information, documents, or the right to participate she was
entitled to as a former foster parent.3
¶13 However, as DCS recognized in its response to this special
action, “participants” are not afforded the same rights as “parties” in
juvenile proceedings. See Ariz. R.P. Juv. Ct. 37(A), (B) (including foster
parents under the definition of “participants” in juvenile proceedings but
not under the definition of “parties”); Roberto F., 232 Ariz. at 50, ¶ 19, n.5.
For example, “parties” may have the right to court-appointed counsel,
A.R.S. §§ 8-824(D)(1), -843(B)(1); Ariz. R.P. Juv. Ct. 65(C)(5)(a); the right to
file motions, see Ariz. R.P. Juv. Ct. 46; the rights and obligations related to
discovery and disclosure, see Ariz. R.P. Juv. Ct. 44; and the right to call and
examine witnesses, A.R.S. § 8-843(B)(3), (4); Ariz. R.P. Juv. Ct. 65(C)(5)(b),
(d). Unlike a party, the superior court may also limit a participant’s
presence at hearings. Ariz. R.P. Juv. Ct. 41(C). Thus, Jones’s right to
participate in the proceedings under § 8-847 did not grant her the same
rights she would have been afforded had she been made a party by
intervention, and the superior court erred by denying Jones’s first motion
to intervene based upon what appears to be its mistaken belief that the right
to participate under § 8-847 was equivalent.
¶14 DCS acknowledges that a motion to intervene by a long-time
foster parent such as Jones is subject to Bechtel, which addressed a motion
filed by a grandparent. Bechtel, 150 Ariz. at 70. But DCS argues the record
shows the superior court did not err by denying Jones’s motions to
intervene under Rule 24(b) and Bechtel. Relying on Roberto F., DCS asserts
this court “must presume (and the record indicates)” that the superior court
“considered the Bechtel factors and the children’s best interests here,” and
that the record supports the superior court’s implicit finding that the factors
did not support intervention. We disagree.
3 On July 5, 2018, the superior court found Jones and her attorneys
violated § 8-807(U) and excluded them from participating in any further
proceedings. See infra ¶ 17. However, the record discloses no proceedings
that took place that Jones would have been entitled to participate in
between July 5 and July 21, 2018, six months after the Children were placed
full time with Aunt.
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¶15 In Roberto F., the superior court found a foster parent was
permitted to intervene based upon Bechtel, but did not expressly analyze
each of the Bechtel factors. Roberto F., 232 Ariz. at 48–49, 52 ¶¶ 11, 34. This
court found reasonable evidence in the record that some of the factors
weighed in favor of granting intervention and that intervention was in the
children’s best interests. Id. at 52–54, ¶ 34–40. Here, however, the superior
court made no reference to Bechtel or Rule 24 in its orders denying Jones’s
motions to intervene, and any possible consideration by the court of the
Bechtel factors was ambiguous at best. Jones’s motions to intervene and the
parties’ objections to those motions cited Bechtel, and the court stated it
reviewed those pleadings, but there is no evidence in the record the court
made any “individualized determination” based upon the evidence of
whether intervention was in the Children’s best interests. See Bechtel, 150
Ariz. at 74 (“Because there is no evidence that the juvenile court made an
individualized determination of the petitioner’s motion to intervene, . . . we
must conclude that the juvenile court abused its discretion by summarily
denying intervention.”); William Z., 192 Ariz. at 389, ¶ 22 (based upon
Bechtel, a lack of an individualized determination explaining the superior
court’s denial of a motion to intervene constitutes an abuse of discretion).
Because the superior court incorrectly relied on Jones’s right to participate
in the proceedings under § 8-847(B)(2), and there is no evidence in the
record to support a conclusion that the court considered the Bechtel factors
or whether intervention was in the Children’s best interests, we hold the
superior court abused its discretion by summarily denying Jones’s motions
to intervene.
¶16 We further note that although the Children’s parents’ rights
have been terminated, the denial of Jones’s motions to intervene is not
moot. DCS also recognized this in its response. After a child has been found
dependent, the superior court must hold periodic review hearings at least
every six months. A.R.S. § 8-847(A). At each hearing, the petitioner must
provide the court with a report that addresses the child’s placement, Ariz.
R.P. Juv. Ct. 58(C)(1), and the court must review its disposition orders,
which include placement, A.R.S. §§ 8-845(A), -847(B). A dependent child
continues to be dependent until an adoption decree is entered. See A.R.S.
§ 8-201(15) (a “dependent child” is a child “[i]n need of proper and effective
parental care and control and who has no parent or guardian”); A.R.S.
§ 8-117 (an adoption decree establishes a parent-child relationship between
a child and the adoptive parent and “completely sever[s]” the relationship
between the adopted child and the child’s prior parents). Because the
superior court erred by denying Jones’s motions to intervene based on
§ 8-847(B)(2) and without considering the Bechtel factors, and because the
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issue is not moot, we vacate the orders denying the motions to intervene
and remand to the superior court to reconsider its orders.
B. The Superior Court Erred by Entering an Order Finding Jones and
her Attorneys Violated A.R.S. § 8-807(U) Without Giving Jones
and Her Attorneys an Opportunity to be Heard.
¶17 Jones also seeks special action relief from the superior court’s
order finding she and her attorneys violated § 8-807(U)’s confidentiality
provision. Jones and her counsel maintain they were not given notice of
DCS’s motion for an order prohibiting Jones from disclosing DCS
information or other personally identifiable information that led to the
superior court finding § 8-807(U) was violated. The record reflects they
were not given notice, and it would be error for the superior court to rule
on the motion without first giving Jones and her counsel the opportunity to
respond. See Ariz. R.P. Juv. Ct. 46(B), (C) (all parties must be served with a
copy of a motion and the court may rule on a motion without a response if
the motion states there is no objection or the time for filing a response has
expired). Although the court may not have been aware Jones and her
counsel were not notified that DCS filed the motion, once the court became
aware of that fact it should have vacated its order ruling on the motion. We
therefore vacate the superior court’s order finding Jones and her attorneys
violated § 8-807(U).
CONCLUSION
¶18 For the foregoing reasons, we accept jurisdiction and grant
relief. We vacate the superior court’s orders denying Jones’s motions to
intervene and the court’s finding Jones and her attorneys violated
§ 8-807(U) and remand for further proceedings consistent with this
decision. The stay of adoption proceedings previously entered by this court
is vacated.
AMY M. WOOD • Clerk of the Court
FILED: AA
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