Sherri C. v. Dcs, H.C. ( 2015 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    SHERRI C., Appellant,
    v.
    DEPARTMENT OF CHILD SAFETY, H.C., Appellees.
    No. 1 CA-JV 14-0295
    FILED 6-16-2015
    Appeal from the Superior Court in Maricopa County
    No. JD27351
    The Honorable Cari A. Harrison, Judge
    AFFIRMED
    COUNSEL
    John L. Popilek, P.C., Scottsdale
    By John L. Popilek
    Counsel for Appellant
    Arizona Attorney General’s Office, Phoenix
    By JoAnn Falgout
    Counsel for Appellee
    SHERRI C. v. DCS, H.C.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Kenton D. Jones delivered the decision of the Court, in which
    Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.
    J O N E S, Judge:
    ¶1          Sherri C. (Grandmother) appeals the juvenile court’s order
    denying her motion to intervene in a dependency case involving her
    grandson, H.C. (Child). For the following reasons, we affirm.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2             Grandmother was granted in loco parentis rights to Child in
    2011 and legal guardianship of Child’s half-sister (Sister) in 2012. In
    November 2013, the Department of Child Safety (DCS) filed a dependency
    petition, alleging the children were dependent as to Grandmother because
    she physically abused them and failed to protect them from physical and
    sexual abuse perpetrated by Grandmother’s then-husband.
    ¶3            Immediately following initiation of the dependency, DCS
    sought to suspend the children’s visits with Grandmother based upon a
    psychologist’s report indicating contact with family members was
    preventing the children from “stabilizing” in their new environment.
    Following an evidentiary hearing in February 2014, the juvenile court
    revoked Grandmother’s in loco parentis status as to Child, denied further
    visitation, and dismissed Grandmother as a party from the case. At the
    same time, the juvenile court revoked Grandmother’s guardianship of
    Sister.2
    1      We view the facts in the light most favorable to upholding the
    juvenile court’s order. Maricopa Cnty. Juv. Action No. JD-5312, 
    178 Ariz. 372
    , 376 (App. 1994).
    2      Grandmother appealed the guardianship revocation, and this
    Court vacated the order because the record did not contain the findings
    required by Arizona Revised Statutes (A.R.S.) section 8-873 (2015). Sherri
    C. v. Dep’t of Child Safety, 1 CA-JV 14-0193 (Ariz. App. Dec. 9, 2014) (mem.
    2
    SHERRI C. v. DCS, H.C.
    Decision of the Court
    ¶4            Grandmother immediately filed a motion to intervene
    pursuant to Arizona Rule of Civil Procedure 24(b) arguing her
    participation, as Child’s paternal grandmother and primary caregiver,
    was in Child’s best interests. DCS objected, and after hearing argument
    from the parties, the juvenile court denied Grandmother’s motion but
    granted her permission to “participate” in the proceedings pursuant to
    Arizona Rule of Procedure for Juvenile Court 58(B)(1).3
    ¶5            Grandmother timely appealed the denial of her motion to
    intervene. We have jurisdiction pursuant to A.R.S. §§ 8-235(A),4 12-
    120.21(A)(1), and -2101(A)(1), and Arizona Rule of Procedure for the
    Juvenile Court 103(A). See Bechtel v. Rose, 
    150 Ariz. 68
    , 71 (1986) (noting
    denial of motion to intervene is a final, appealable order).
    DISCUSSION
    ¶6             We review the denial of a motion to intervene in a
    dependency action for an abuse of discretion. Allen v. Chon-Lopez, 
    214 Ariz. 361
    , 364, ¶ 9 (App. 2007) (citing 
    Bechtel, 150 Ariz. at 72
    , and Speer v.
    Donfeld, 
    193 Ariz. 28
    , 31, ¶ 9 (App. 1998)). The juvenile court abuses its
    discretion when its decision is “manifestly unreasonable, or exercised on
    untenable grounds, or for untenable reasons.” Lashonda M. v. Ariz. Dep’t of
    Econ. Sec., 
    210 Ariz. 77
    , 82-83, ¶ 19 (App. 2005) (quoting Quigley v. Tucson
    City Court, 
    132 Ariz. 35
    , 37 (1982)).
    ¶7             Generally, grandparents “should be allowed to intervene in
    the dependency process unless a specific showing is made that the best
    interest of the child would not be served thereby.” 
    Bechtel, 150 Ariz. at 73
    .
    decision). However, Grandmother did not appeal the simultaneous
    determination of the juvenile court that DCS had satisfied its burden in
    proving Sister was dependent as to Grandmother, and therefore,
    Grandmother does not dispute that the allegations contained in the
    petition, see supra ¶ 2, were proven to be true by a preponderance of the
    evidence.
    3      This rule permits the juvenile court to provide notice and a right to
    participate in dependency proceedings to, among other persons, a child’s
    relative or prior physical custodian. Ariz. R.P. Juv. Ct. 58(B)(1).
    4     Absent material revisions from the relevant date, we cite a statute’s
    current version.
    3
    SHERRI C. v. DCS, H.C.
    Decision of the Court
    “Before ruling on a motion to intervene, the juvenile court should consider
    and weigh the relevant factors,” which include:
    [T]he nature and extent of the intervenors’ interest, their
    standing to raise relevant legal issues, the legal position they
    seek to advance, and its probable relation to the merits of the
    case. The court may also consider whether changes have
    occurred in the litigation so that intervention that was once
    denied should be reexamined, whether the intervenors’
    interests are adequately represented by other parties,
    whether intervention will prolong or unduly delay the
    litigation, and 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.
    
    Id. at 72,
    74 (quoting Spangler v. Pasadena City Bd. of Educ., 
    552 F.2d 1326
    ,
    1329 (9th Cir. 1977)).
    ¶8            In denying Grandmother’s motion, the juvenile court found
    Child’s best interests were adequately protected by DCS and the guardian
    ad litem and intervention would not significantly contribute to
    development of the case where the “posture of [the] severance” would
    ultimately be presented to the juvenile court during the course of the
    dependency. In other words, Grandmother would necessarily be called
    upon to provide testimony regarding her involvement in Child’s life and
    the circumstances leading to the filing of the dependency proceeding
    regardless of her status as an intervenor. The court also specifically found
    that any “limited positive effect” of intervention “is overridden by the
    overall best interest of the child,” noting “[t]his is a very complicated case
    with allegations relating to a family member having previously been
    abused, having disclosed it to each other, to the Grandmother . . . [a]nd
    there being conflicting information as to whether . . . those issues were
    known, withdrawn, ignored.” Finally, the court noted that, to the extent
    Grandmother sought intervention for the purpose of litigating her
    potential to serve as an adoptive placement, the issue was premature; the
    parental rights remained intact, and a separate administrative avenue
    existed by which Grandmother could address placement.
    ¶9           Grandmother does not suggest the juvenile court failed to
    consider the appropriate factors, but instead argues application of these
    factors weighs in favor of intervention. We disagree. The juvenile court
    applied the law correctly in considering the Bechtel factors and
    4
    SHERRI C. v. DCS, H.C.
    Decision of the Court
    determining Grandmother’s intervention would not contribute to the case.
    See 
    Allen, 214 Ariz. at 366
    , ¶ 13 (vacating order denying aunt’s motion to
    intervene where the juvenile court improperly focused solely on the likely
    outcome of the proceeding rather than the necessity of intervention).
    Moreover, we defer to the juvenile court’s superior position to “‘judge the
    credibility of the parties, observe the parties, and make appropriate factual
    findings.’” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 
    207 Ariz. 43
    , 47, ¶ 8
    (App. 2004) (quoting Pima Cnty. Dependency Action No. 93511, 
    154 Ariz. 543
    , 546 (App. 1987)). The court’s conclusion is supported by the record
    and represents a reasonable assessment of the specific circumstances
    surrounding Child’s dependency proceedings, with which it is intimately
    familiar.5 Therefore, we find no abuse of discretion.
    CONCLUSION
    ¶10        We affirm the order of the juvenile court denying
    Grandmother’s motion to intervene.
    :ama
    5      Grandmother also argues the restoration of her guardianship over
    Sister requires the juvenile court to reconsider its decision on
    Grandmother’s motion to intervene in Child’s dependency proceedings.
    Although the juvenile court did adopt by reference its factual findings
    from the February 2014 evidentiary hearing, those findings are not
    contained in the record on appeal. We therefore do not consider them in
    reaching our decision here, Lewis v. Oliver, 
    178 Ariz. 330
    , 338 (App. 1993)
    (“We will consider only those matters in the record before us.”), and
    regardless, we find adequate support within the record to sustain the
    juvenile court’s denial of the motion to intervene.
    5