Roberto F. v. Ariz. Dep't of Econ. Sec.

• Decision Date: 20 June 2013
• Docket Number: No. 1 CA–JV 11–0253.,1 CA–JV 11–0253.
• Citation: 659 Ariz. Adv. Rep. 11,301 P.3d 211,232 Ariz. 45,664 Ariz. Adv. Rep. 4
• Parties: ROBERTO F., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, L.F., I.A., Tracie H., Jimmy S., Appellees.
• Court: Arizona Court of Appeals

232 Ariz. 45

301 P.3d 211

659 Ariz. Adv. Rep. 11

664 Ariz. Adv. Rep. 4

ROBERTO F., Appellant,

v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, L.F., I.A., Tracie H., Jimmy S., Appellees.

No. 1 CA–JV 11–0253.

Court of Appeals of Arizona, Division 1, Department D.

April 30, 2013.

As Amended June 20, 2013.

Thomas C. Horne, Attorney General By Amanda Holguin, Assistant Attorney General, Mesa, Attorneys for Appellee.

Diane S. McCoy, Mohave County Appellate Defender, Kingman, Attorneys for Appellant/Father Roberto F.

Kelley Moss & Holden PLLC By Michele Holden, Bullhead City, Attorney for Appellee/Intervenors Tracie H. and Jimmy S.

Knudtson Law LLC By Lenore Knudtson, Kingman, Guardian Ad Litem for Children.

OPINION

GOULD, Judge.

[232 Ariz. 47]¶ 1 In this case, we vacate a judgment terminating the natural father's (“Father”) parental rights to his children, L.F. and I.A. (collectively, the “Children”). Our review of the record shows the evidence was insufficient to support termination. In addition, the trial court erred by terminating Father's parental rights based, in part, on a theory of abandonment that was not disclosed until the fourth day of a five-day trial.

¶ 2 In reaching our decision, we also address whether the trial court erred in permitting intervention by a foster parent in a dependency case. Although we ultimately affirm the trial court's exercise of discretion in allowing foster parents to intervene, we discuss the potential prejudicial effects of such intervention.

Factual and Procedural Background

¶ 3 L.F. was born in Arizona in February 2005. In the months preceding her birth, Father was incarcerated in California. After L.F. was born, Father was released and applied for a transfer under an interstate compact in order to serve his parole in Arizona to be with his daughter. However, when his application “didn't work out,” Father came to Arizona anyway. In taking this action, Father explained, “I wasn't going to leave my daughter.” Thus, approximately one month after L.F. was born, Father was living with L.F. and Mother in Arizona.

¶ 4 Father, Mother, and L.F. lived together in Arizona for two years. The family later moved to California where, after approximately one year, Mother and Father separated. At the time of their separation, Mother was six months pregnant with their second child, I.A. Mother eventually left California and moved back to Arizona with L.F. In April 2009, approximately one week after Mother moved back to Arizona, Father was arrested and incarcerated in California for violating his parole because he had earlier moved to Arizona without permission.

¶ 5 In June 2009, I.A. was born substance-exposed to methamphetamine, and both L.F. and I.A. were removed from Mother's care and custody by the Arizona Department of Economic Security (“ADES”). A few days later, the Children were placed in a foster home with Tracie H. and Jimmy S. (“Foster Parents”) and ADES filed a dependency petition. As to Father, the petition alleged that Father was “incapable of exercising parental care and control of either child because he is imprisoned ... in California.”

¶ 6 On July 16, 2009, Father was served with the dependency petition while incarcerated in California. When Father was released from prison a few days later, he immediately violated his parole by drinking alcohol. Approximately three days later, Father's parole officer gave him the choice between either returning to prison or enrolling in a year-long substance abuse program in California; Father chose to enter the California substance abuse program.

¶ 7 Father finished the substance abuse program in June 2010, but, according to Father, was not allowed to leave California until he finished his parole in November 2010. A few weeks after completing his parole, in December 2010, Father returned to Arizona to “fight for his kids.”

¶ 8 While Father was attending the substance abuse program in California, the dependency proceeding was pending in Arizona. From its inception, the ADES case plan focused on returning the Children to their parents. In June 2010, the court conducted a permanency planning hearing and ordered a primary case plan of family reunification with a concurrent case plan of severance and adoption. This plan was affirmed by the court in September 2010.

¶ 9 When Father returned to Arizona in December 2010, the primary case plan remained family reunification. However, at a hearing held in January 2011, the State and the Guardian ad Litem (“GAL”) for the Children advised the court there was a disagreement about the case plan. The State continued to believe family reunification was the correct case plan, while the GAL expressed concerns regarding reunification.¹ After considering the positions of the State and the GAL, the court decided the case plan would remain family reunification.

¶ 10 In early February 2011, approximately three weeks after the court affirmed the reunification plan, Foster Parents moved to intervene in the dependency proceedings. Foster Parents also filed a separate termination petition seeking to sever the parental rights of Mother and Father.² The motion to intervene was opposed by ADES, Mother, and Father, but supported by the GAL and the Children's attorney.

¶ 11 The court granted Foster Parents' motion to intervene. The court found that Foster Parents had a conditional right to intervene based on Arizona Rule of Civil Procedure 24(b)(1) and Arizona Revised Statute (“A.R.S.”) section 8–530(A). It also found that because Foster Parents stood in loco parentis to the Children, based on A.R.S. § 25–415 (West 2011) (now codified as amended at A.R.S. § 25–409) and Bechtel v. Rose, 150 Ariz. 68, 722 P.2d 236 (1986), intervention was permitted under Rule 24(b)(2).

¶ 12 After the court granted Foster Parents' motion to intervene, two important developments occurred in the dependency case. First, the State's focus on family reunification changed from Mother to Father. In early March 2011, Mother relapsed in her substance abuse treatment and tested positive for methamphetamine. Despite Mother's relapse, ADES reported that Father had demonstrated that he was able to parent and maintain a “loving and stable environment” for the Children. In response, Father, who had been living with Mother, left her and moved into his own home.³

¶ 13 The second important development was that notwithstanding CPS' positive comments about Father, the direction of Father's dependency case immediately changed from reunification to severance. In late March 2011, the court held a supplemental permanency planning hearing in the dependency case and an initial appearance on Foster Parents' petition to sever in the termination case. At this hearing, the court consolidated Foster Parents' termination case with the dependency case. During the hearing the court commented it was “not necessarily noticing any ‘progress[,]’ ” and “[w]ith that and given the age of the children, the Court finds it appropriate to change the case plan to severance and adoption by a nonrelative.” The court then directed the children's attorney or the GAL to file “an appropriate motion” to change the case plan from reunification to severance and adoption. Children's attorney orally moved to join in the Foster Parents' Petition to Sever, and the court granted the motion.

¶ 14 The consolidated case proceeded to trial over five separate trial days, concluding in early November 2011. The trial pitted the State and Father arguing against severance and for reunification against the Foster Parents and the GAL arguing for severance. Late in the afternoon of the fourth (and second to last) day of trial, Foster Parents moved to amend their petition to include abandonment as a ground for severance. The State and Father objected to the amendment as untimely. Nonetheless, the court allowed the amendment.

¶ 15 At the end of the trial the court terminated Father's parental rights to the Children on the grounds of abandonment and 15 months time-in-care. ⁴ Father timely appeals.

Discussion

¶ 16 Father contends the trial court abused its discretion by allowing Foster Parents to intervene in the dependency proceeding. In addition, Father asserts the court committed reversible error in terminating his parental rights based on 15 months time-in-care and abandonment. SeeA.R.S. § 8–533(B)(1); A.R.S. § 8–533(B)(8)(c).

I. Intervention

¶ 17 We review rulings granting or denying a motion to intervene for an abuse of discretion. Allen v. Chon–Lopez, 214 Ariz. 361, 364, ¶ 9, 153 P.3d 382, 385 (App.2007). Under this standard of review, we do not substitute our judgment for that of the trial court, and “will sustain the trial court's ruling on any theory supported by the evidence, even though the trial court's reasoning may differ from our own.” Univ. Mech. Contractors v. Puritan Ins. Co., 150 Ariz. 299, 301, 723 P.2d 648, 650 (1986).

[232 Ariz. 50]¶ 18 “To justify the reversal of a case, there must not only be error, but the error must have been prejudicial to the substantial rights of the party.” Creach v. Angulo, 189 Ariz. 212, 214, 941 P.2d 224, 226 (1997) (quoting with approval Creach v. Angulo, 186 Ariz. 548, 550, 925 P.2d 689, 691 (App.1996)); see Bob H. v. Ariz. of Dep't Econ. Sec., 225 Ariz. 279, 283, ¶ 16, 237 P.3d 632, 636 (App.2010) (explaining that a “denial of due process of law so gross as to lack a necessary attribute of a judicial determination” constituted reversible error). Reversible error will not be presumed, but must be found to exist in the record. Ariz. Dep't of Econ. Sec. v. Valentine, 190 Ariz. 107, 110, 945 P.2d 828, 831 (App.1997).

¶ 19 Foster Parents were required to obtain court approval to intervene because absent intervention, as foster parents they were “participants,” not “parties,” in the dependency proceeding. See Ariz. R.P. Juv. Ct. 37(A), (B) (including foster parents under the definition of “[p]articipants” in dependency proceedings, but not under the definition of...