Jeff D., Erika D. v. Dcs, L.W. , 239 Ariz. 205 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JEFF D., ERIKA D., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, L.W., Appellees.
No. 1 CA-JV 15-0130
FILED 2-16-2016
Appeal from the Superior Court in Maricopa County
No. JD510766
The Honorable Shellie F. Smith, Judge Pro Tempore
AFFIRMED
COUNSEL
Jeffrey M. Zurbriggen, PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Appellants
Arizona Attorney General's Office, Mesa
By Amanda L. Adams
Counsel for Appellee DCS
OPINION
Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
J O H N S E N, Judge:
¶1 This appeal presents questions relating to the change of
physical custody of a child in the legal custody of the State from a foster
family that wanted to adopt her to the child's great aunt and uncle, who
also wanted to adopt her. We hold the superior court did not violate the
foster family's due-process rights and did not abuse its discretion by
granting the change.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Department of Child Safety ("DCS") filed a dependency
petition in January 2013 alleging neglect by the parents of a one-year-old
child ("Child").1 At a permanency hearing in October 2014, the superior
court changed the case plan to severance and adoption. On January 7, 2015,
after two years in a different foster home, Child was placed with Jeff D. and
Erika D. ("Foster Parents") as a potential adoptive placement.
¶3 Five weeks later, Lane S. and Sherry S., Child's great aunt and
uncle ("Great Aunt and Uncle"), moved to intervene and sought physical
custody of Child, saying they wanted to adopt her if her parents' rights
were terminated. Great Aunt and Uncle live in Wisconsin and filed a report
pursuant to the Interstate Compact on the Placement of Children
supporting their request for custody. Child's mother and DCS supported
placement with Great Aunt and Uncle, and DCS moved to have Child
transferred to them. The court set oral argument on the motion to intervene
and the motion to change custody. In the meantime, Foster Parents moved
to intervene and filed an objection to DCS's motion to change custody.
Foster Parents also submitted reports for the court's consideration and filed
a list of witnesses and exhibits.
¶4 On April 10, 2015, the court heard argument from Child's
guardian ad litem, DCS, the birth parents, Great Aunt and Uncle and Foster
Parents. The court granted both motions to intervene, then found that
placement with Great Aunt and Uncle would be in Child's best interests.
The court first noted that it had considered all of the information presented,
as well as Arizona Revised Statutes ("A.R.S.") section 8-514(B) (2016), which
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
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JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
establishes a statutory preference for "kinship" placements, including
placement with "another member of the child's extended family[.]"2 The
court then found that although each proposed placement could provide
Child a loving, safe and stable home, the statutory preference weighed in
favor of placement with Great Aunt and Uncle:
The Court finds that the statutory preferences are there for a
reason, to give guidance to the Court in terms of placement
preferences and in this case the Court finds that the placement
preference would be with the biological relatives of the
mother and that's [Great Aunt and Uncle].
¶5 Foster Parents timely appealed. We have jurisdiction
pursuant to Article 6, Section 9 of the Arizona Constitution, A.R.S. §§ 8–
235(A) (2016), 12-2101(A)(1) (2016) and Rule 103(A) of the Arizona Rules of
Procedure for the Juvenile Court.
DISCUSSION
A. Foster Parents' Due-Process Rights.
¶6 Foster Parents first argue the superior court violated their
due-process rights when it did not allow them to present testimony at the
hearing. Whether the superior court afforded Foster Parents due process is
a question of law subject to de novo review. See Herman v. City of Tucson, 197
Ariz. 430, 432, ¶ 5 (App. 1999).
¶7 "The touchstone of due process under both the Arizona and
federal constitutions is fundamental fairness." State v. Melendez, 172 Ariz.
68, 71 (1992). Due process requires the opportunity to be heard "at a
meaningful time and in a meaningful manner." Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
It also is "flexible and calls for such procedural protections as the particular
situation demands." Id. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)).
¶8 When the State seeks to remove children from the custody of
birth parents, the parents' fundamental liberty interest in raising their
children requires certain procedural protections. See Santosky v. Kramer, 455
U.S. 745, 753-54 (1982) ("When the State moves to destroy weakened
familial bonds, it must provide parents with fundamentally fair
2 Absent material revision after the relevant date, we cite a statute's
current version.
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JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
procedures."); Maricopa County Juv. Action No. JS-7499, 163 Ariz. 153, 158
(App. 1989) ("It is well settled that the fundamental liberty interest in the
care, custody, and control of one's children may not be changed by the state
without due process of law."). But a challenge by foster parents to a
dependent child's placement does not implicate the same fundamental
liberty interests. Even though Foster Parents were committed to adopting
Child, no authority suggests that their due-process rights were equivalent
to those of birth parents whose rights are the subject of dependency or
termination proceedings.
¶9 By statute, foster parents who intend to seek adoption of a
child are entitled to notice and a hearing under circumstances such as those
presented in this case:
If the court determines that termination of parental rights or
permanent guardianship is clearly in the best interests of the
child and the child has been placed in a prospective
permanent placement . . . any action that is inconsistent with
the case plan of severance and adoption, including removal
of the child from that placement, may occur only by court
order . . . . If a motion to change the case plan or for removal
of a child is filed, a copy of the motion must be provided to
the prospective permanent placement at least fifteen days
before a hearing on the motion. . . . The prospective
permanent placement has the right to be heard in the
proceeding.
A.R.S. § 8-862(H) (2016); see also Ariz. R. P. Juv. Ct. 37(B) (foster parents are
"participants" in a severance or dependency, entitled to notification "of all
applicable proceedings, as required by law" or court order).
¶10 Citing § 8-862(H), Foster Parents argue they had fewer than
15 days' notice of the hearing on the DCS motion to transfer, but they did
not raise this objection in the superior court and they do not explain on
appeal how they might have been prejudiced by inadequate notice. If
parties do not raise purported procedural errors in the superior court, they
may forfeit the right to raise them on appeal. See In re Marriage of Dorman,
198 Ariz. 298, 302-03, ¶ 11 (App. 2000). Further, nothing in the record
suggests Foster Parents did not have adequate time to prepare and present
their case. See Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 314
(1950) ("An elementary and fundamental requirement of due process in any
proceeding . . . is notice reasonably calculated, under all circumstances, to
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JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.").
¶11 Foster Parents further argue the superior court violated their
due-process rights when it set an evidentiary hearing but then would not
allow them to present evidence and cross-examine witnesses. In fact, the
court had not set the matter for an evidentiary hearing; its minute entry
designated the proceeding as an "Oral Argument regarding the Motion to
Intervene and possible change of physical custody[.]" Nevertheless, before
the hearing, Foster Parents filed two bonding assessments, one by an
adoption specialist and another by a psychologist, and a report by Child's
behavioral therapist. The authors of the reports were present at the hearing.
¶12 At the outset of the hearing, after granting both motions to
intervene, the court solicited comments from Child's guardian ad litem,
who observed that Child had bonded with Foster Parents but declined to
take a position about custody, saying both possible placements were
"absolutely fantastic families that will take care of [Child] for the rest of her
life[.]" Expressing concern that continued uncertainty was not in Child's
best interests, however, the guardian ad litem urged the court to decide the
placement issue without delay.
¶13 The court then noted that Foster Parents wanted to present
testimony by the authors of the reports they had submitted. Great Aunt
and Uncle had not submitted any reports but brought photographs of them
visiting with Child. They objected to allowing Foster Parents' witnesses to
testify, arguing the court had not let the parties know in advance that it
would take evidence. The court acknowledged it had not set the matter for
an evidentiary hearing, but stated that to avoid delay it would consider the
photographs and Foster Parents' "pleadings," along with argument by both
sides. Following argument, the court allowed a case worker from the foster
adoption agency who worked with Foster Parents to speak.
¶14 On this record, and in the absence of any indication that
Foster Parents' witnesses would have provided additional relevant
evidence beyond that contained in their reports, Foster Parents' right to be
heard pursuant to § 8-862(H) was satisfied. The superior court allowed
Foster Parents to intervene on the placement issue and considered the
written reports they submitted and argument by their counsel.
¶15 Citing Volk v. Brame, 235 Ariz. 462 (App. 2014), however,
Foster Parents argue due-process principles required the superior court to
allow them to call the authors of the reports to testify about Child's
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JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
placement. The issue in Volk was the validity of financial statements the
parties offered to decide child support. Id. at 464, ¶ 3, 465, ¶ 9. The court
did not allow the father time to to speak about the mother's evidence and
"repeatedly interrupted Father's attempts to explain his view of the
submitted exhibits[.]" Id. at 465, ¶ 9. Under those circumstances, we held
that if parties proffer testimony about a disputed issue that requires a
credibility determination, the court may not rely solely on avowals of
counsel and oral argument, but must allow testimony. Id. at 464, ¶ 1.
¶16 Assuming for purposes of argument that Foster Parents may
assert the due-process rights at issue in Volk, in contrast to that case, there
is no indication in the record that the reports Foster Parents submitted and
the court reviewed required clarification or explanation. There was no
disagreement at the hearing that each family could offer Child an
appropriate, warm and loving home. In deciding placement, the Court was
not deciding disputed issues of fact about the respective families; instead,
as the court explained, it weighed the statutory preference granted to family
members against the possibility that Child might suffer emotionally if she
were transferred again.3
B. Compliance with A.R.S. § 8-514(B).
¶17 Foster Parents also argue the superior court failed to comply
with A.R.S. § 8-514(B) and abused its discretion in finding placement with
Great Aunt and Uncle was in Child's best interests.
¶18 The superior court has broad discretion in determining the
placement of a dependent child; we review placement orders for an abuse
of that discretion. Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, 404, ¶
8 (App. 2008). In ruling on placement, the court's primary consideration is
the best interests of the child. Id. To the extent our review of an order
involves the interpretation of a statute, we review the issue de novo. In re
Sheree M., 197 Ariz. 524, 525, ¶ 4 (App. 2000). This court interprets a statute
according to its plain meaning. Brunet v. Murphy, 212 Ariz. 534, 539, ¶ 20
(App. 2006). When statutory language is clear, we apply it without using
3 Foster Parents argue "very important facts were wrong [in the court's
order] and with just a little evidence that issue would have been clear." The
only inaccuracies they cite, however, are the court's references to "maternal
uncle and aunt." Under the authorities, however, that the other placement
would have been Child's great aunt and uncle rather than her aunt and
uncle is not significant. See infra Section B.
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JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
other means of construction, but when it is ambiguous or unclear, "we
attempt to determine legislative intent by interpreting the statutory scheme
as a whole and consider the statute's context, subject matter, historical
background, effects and consequences, and spirit and purpose." In re
Marriage of Williams, 219 Ariz. 546, 549, ¶ 10 (App. 2008) (quoting Hughes v.
Jorgenson, 203 Ariz. 71, 73, ¶ 11 (2002)).
¶19 Pursuant to § 8-514(B), DCS "shall place a child in the least
restrictive type of placement available, consistent with the needs of the
child." The statute lists seven categories of prospective placements in "order
for placement preference[.]" A.R.S. § 8-514(B). When a court is deciding
between competing requests for placement, "[t]he statute requires only that
the court include placement preference in its analysis of what is in the
child's best interest." Antonio P., 218 Ariz. at 405, ¶ 12.
¶20 The first two placement preferences listed in the statute are
with a parent and with a grandparent, respectively. A.R.S. § 8-514(B)(1),
(2). The third placement preference is "[i]n kinship care with another
member of the child's extended family, including a person who has a
significant relationship with the child." A.R.S. § 8-514(B)(3). The statute
does not define either "kinship care" or "extended family," but Foster
Parents contend the scope of those terms is limited by a statutory definition
of another term, "relative." Foster Parents contend the superior court erred
by affording a preference to Great Aunt and Uncle under § 8-514(B)(3)
because "relative," as defined by § 8-501(A)(13) (2016), includes "aunt" and
"uncle" but not "great aunt" and "great uncle." We see no principled reason,
however, to restrict the scope of the preference afforded in § 8-514(B)(3) in
such a manner.
¶21 Examining first the text of § 8-514(B), the statute does not use
the word "relative" to describe any of the preference categories it
establishes. After identifying separate preferences for a "parent" and a
"grandparent," § 8-514(B)(1), (2), the statute then broadly categorizes all
other forms of family placement (beyond placement with a parent or a
grandparent) in subsection (3) as "[i]n kinship care with another member of
the child's extended family[.]" We therefore infer that by "another member
of the child's extended family," the legislature meant the third placement
preference to include any member "of the child's extended family" other
than a parent or a grandparent.
¶22 Section 8-501(A), on which Foster Parents' argument is
premised, sets out the definitions of several terms that apply "[i]n this
article, unless the context otherwise requires[.]" Subsection (A)(13) of § 8-
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JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
501 defines "relative" as "a grandparent, great-grandparent, brother or sister
of whole or half blood, aunt, uncle or first cousin." Although § 8-514, the
placement preference statute, falls within the same article as § 8-501, there
is no reason to conclude that the legislature's definition of "relative" in § 8-
501(A) limits the meaning of the broader terms "kinship care" and
"extended family" when the legislature decided to use those terms (rather
than "relative") in § 8-514(B).
¶23 In the first place, applying the definition of "relative" from §
8-501(A)(13) to the "extended family" preference in § 8-514(B)(3) would
cause confusion because, as defined by the former statute, "relative"
includes "grandparent." But the legislature could not have intended to put
a grandparent in the third preference category with other extended family;
it expressly granted grandparents their own distinct preference category
(one step above "extended family"), in § 8-514(B)(2).
¶24 More generally, rather than specifying certain family
members (as it did in defining "relative" in § 8-501(A)), the legislature used
broad, general language ("member of the child's extended family") to
establish the scope of the third placement preference afforded by § 8-514(B).
The legislature's decision not to employ a narrower term or to add a
definition that otherwise would restrict the scope of the term "extended
family," particularly given the precise manner in which the legislature
defined "relative" in § 8-501(A), demonstrates the legislature intended that
"extended family" in § 8-514(B)(3) would apply broadly, encompassing
more than the handful of family members who fall within the defined term
"relative."
¶25 Moreover, nothing in the legislative history of the two
provisions supports Foster Parents' argument that the definition of
"relative" in § 8-501(A)(13) controls the meaning of "kinship care with
another member of the child's extended family" in § 8-514(B)(3). The
legislature added the definition of "relative" to § 8-501(A) in 1982 when it
amended existing foster-care statutes to require the State to pay for medical
and dental care for children in the legal custody of the State but placed with
a relative. See 1982 Ariz. Sess. Laws, ch. 246, § 1 (2d. Reg. Sess.). The
definition enacted then encompassed "a grandparent, brother or sister of
whole or half blood, aunt, uncle or first cousin." Id.
¶26 In 1982, when the legislature added the definition of
"relative," state law authorized the child welfare agency to place a child in
the custody of the State with a "licensed foster home for care or for
adoption." A.R.S. § 8-514(A) (1982); see also A.R.S. § 8-514 (1970) (same),
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Opinion of the Court
A.R.S. § 8-514(A) (1971) (same), A.R.S. § 8-514(A) (1978) (same). In 1990, the
legislature added § 8-514.02, which expressly allowed the agency to place
such a child "with a parent or relative." See 1990 Ariz. Sess. Laws, ch. 237, §
3 (2d. Reg. Sess.). At the same time, the legislature expanded the definition
of "relative" in § 8-501(A) to include "great-grandparent." See 1990 Ariz.
Sess. Laws, ch. 237, § 1 (2d. Reg. Sess.) (redefining and renumbering).
¶27 The legislature did not establish the placement preferences set
out in § 8-514(B) until 2006. See 2006 Ariz. Sess. Laws, ch. 247, § 1 (2d. Reg.
Sess.). Its decision to craft the broader term "kinship care with another
member of the child's extended family" for use in the placement preference
statute, rather than employ the term "relative," which it had defined for
other purposes more than a decade before, supports the conclusion that it
intended a more expansive notion of family placement than the one defined
by "relative" in § 8-501(A)(13).4
¶28 Alternatively, Foster Parents argue the superior court
misapplied § 8-514(B)(3) by failing to recognize that because they have a
"significant relationship" with Child, they are entitled to the same
preference the court afforded to Great Aunt and Uncle. See A.R.S. § 8-
514(B)(3) ("In kinship care with another member of the child's extended
family, including a person who has a significant relationship with the
child."). The court ruled that because Child had been with Foster Parents
for about four months, which it characterized as a "relatively short period
of time," Foster Parents would not be given a statutory placement
preference over Great Aunt and Uncle. On the record presented, we will
not disturb that finding by the court. See Jesus M. v. Ariz. Dep't of Econ. Sec.,
203 Ariz. 278, 282, ¶ 12 (App. 2002).
¶29 Finally, the record contains reasonable support for the court's
conclusion that placement with Great Aunt and Uncle was in Child's best
interest. As noted, Child's guardian ad litem praised both prospective
placements, and the Interstate Compact report stated that Great Aunt and
Uncle were "[c]ommitted to raising [Child] as their own and adopting" and
"keeping [Child] connected to family." Foster Parents argue the court did
not consider Child's best interests in applying the statutory preference in
favor of Great Aunt and Uncle. But the court expressly found that both
4 Foster Parents do not argue that, as limited by the definition of
"relative" in § 8-501(A), the only "relative" placements DCS is authorized to
make under § 8-514.02 are with a "grandparent, great-grandparent, brother
or sister of whole or half blood, aunt, uncle or first cousin."
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JEFF D., ERIKA D. v. DCS, L.W.
Opinion of the Court
families would allow Child to "thrive, be successful and be loved very
much."
CONCLUSION
¶30 Because the superior court did not violate Foster Parents' due-
process rights and did not abuse its discretion by applying the statutory
preference or by deciding that placement with Great Aunt and Uncle would
be in Child's best interests, we affirm the placement order.
:ama
10