Jennifer B. v. Arizona Dept. of Economic Sec.

• Decision Date: 24 June 1997
• Docket Number: No. 1,CA-JV,1
• Parties: , 246 Ariz. Adv. Rep. 24 JENNIFER B., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Angela S., and Jonathan S., Appellees. 96-0222.
• Court: Arizona Court of Appeals

Page 68

944 P.2d 68

189 Ariz. 553, 246 Ariz. Adv. Rep. 24

JENNIFER B., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Angela S., and Jonathan S., Appellees.

No. 1 CA-JV 96-0222.

Court of Appeals of Arizona,

Division 1, Department D.

June 24, 1997.

Review Denied Sept. 25, 1997.

[189 Ariz. 554] Helm & Kyle, Ltd. by Margaret R. Tinsley, Tempe, for Appellant.

Grant Woods, Attorney General by Kimberly D. Halbig-Sparks, Assistant Attorney General, Phoenix, Hagen, Boyle & Jones, P.C. by Joseph M. Boyle, Phoenix, for Appellee ADES.

Kessler & Doyle by Eric W. Kessler and Michael J. Doyle, Mesa, for Appellee Angela S.

Hamilton Law Office, P.C. by Lynn T. Hamilton, Mesa, Guardian Ad Litem for Jonathan S.

Law Offices of Lawrence M. Bierman, P.C. by Lawrence M. Bierman, Mesa, for Appellee Jonathan S.

OPINION

VOSS, Judge.

Appellant Jennifer B., the maternal aunt of the dependent child Jonathan S., appeals from the juvenile court's order revoking her permanent guardianship of the child. This appeal involves issues of first impression concerning the relatively new statutory scheme for permanent guardianship of a dependent child pursuant to Ariz.Rev.Stat. (A.R.S.) sections 8-525 to -525.02.

PROCEDURAL BACKGROUND

On April 26, 1994, by stipulation of all parties, the child was found dependent pursuant to A.R.S. § 8-201(11), was made a ward of the court, was committed to the care, custody, and control of the Arizona Department of Economic Security (ADES), and was placed in the physical custody of his maternal aunt, Jennifer B. (aunt). The child had been living with his aunt since July 1993, with the consent of his mother.

On February 8, 1995, the aunt petitioned for permanent guardianship of the child pursuant to A.R.S. § 8-525.01. Upon the stipulation of the parties without an evidentiary hearing, the court entered an order of permanent guardianship, finding that the mother's current living situation made it doubtful that she would regain custody of the child in the near future and that the aunt was willing to both accept the responsibilities of permanent guardian and allow the mother reasonable visitation with the child. The order provided for a report and review in one year, and, in the interim, provided that "Child Protective Services shall continue to monitor [the child and the mother] and shall provide such services as [the mother] may reasonably request or as [the child] may require."

On February 6, 1996, ADES and the mother filed a petition to revoke the guardianship alleging as a significant change in circumstances that the guardian was unable to properly care for the child. The child had been removed from the custody of his aunt on January 2, 1996, after the caseworker learned of allegations that the child was being physically and emotionally abused in the aunt's home. The child was placed in a temporary shelter and then subsequently in a foster home pending the hearing on the petition, and the court ordered counseling for the child, with no contact allowed by his aunt.

After a three-day hearing, the court entered its order revoking the guardianship, concluding that "there has been a change of circumstances proven by clear and convincing evidence and the revocation is in the child's best interest." The court also concluded that "there is clear and convincing evidence that the permanent guardian is not capable of caring for the minor child and is not the appropriate caretaker under the circumstances." The court found the child remained dependent, within the custody of ADES in foster care.

The aunt timely appealed from the order revoking her permanent guardianship.

DISCUSSION

On appeal, the aunt raises the following issues:

1. Did the juvenile court err in finding clear and convincing evidence that the permanent guardianship should be terminated pursuant to A.R.S. § 8-525.02?

2. Did the juvenile court err in concluding the child should not be returned to the aunt's home?

3. Did the juvenile court err in failing to find that ADES had a responsibility to provide services to maintain the child's placement in the permanent guardianship prior to removal?

Standard of Review

We will affirm a juvenile court's order based on findings of clear and convincing evidence unless no reasonable evidence supports those findings. See In Matter of Pima County Juv. Sev. Action No. S-113432, 178 Ariz. 288, 292, 872 P.2d 1240, 1244 (App.1993)(standard of review on appeal from severance order based on clear and convincing evidence). We will not reverse the juvenile court's order unless it is clearly erroneous. In Matter of Pima County Sev. Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App.1989)(same).

Sufficiency of Evidence for Revocation of Guardianship

The aunt contends on appeal that the juvenile court erred in finding clear and convincing evidence to support revocation of the permanent guardianship. In this case, revocation was based on the following statutory provisions:

A. The child, a parent of the child or any party to the dependency proceeding may file a petition for the revocation of an order granting permanent guardianship if there is a significant change in circumstances, including:

....

2. The child's permanent guardian is unable to properly care for the child.

....

C. The court may revoke the order granting permanent guardianship if the party petitioning for revocation proves a change of circumstances by clear and convincing evidence and the revocation is in the child's best interest.

A.R.S. § 8-525.02.

Prior to 1994, juvenile guardianship proceedings were governed by provisions of the probate code. See A.R.S. §§ 14-5201 to -5212. Under the general provisions of the probate code, a trial court had broad discretion to appoint or remove a guardian based solely on a consideration of the best interests of the ward. See, e.g., In re Guardianship of Kelly, 184 Ariz. 514, 518, 910 P.2d 665, 669 (App.1996)(appointment); A.R.S. § 14-5212(A)(removal).

In 1994, the legislature enacted the provisions at issue in this case, which now enable the juvenile court to appoint a permanent guardian for a child who has been declared dependent. See Ariz. Sess. Laws 1994, Ch. 335, § 3. The legislative history of this enactment indicates that its purpose was to provide "permanency in the custodial relationship" of "older children who are not suitable candidates for adoption," "in a dependency proceeding in those instances where the Department of Economic Security (DES) has been unsuccessful in reuniting the family," and where parental rights are not severed, but, rather, "it is hoped there will be a continuing relation between the parent and the child." Ariz. House of Rep., H.B.2062, Minutes of the Judiciary Committee, Feb. 3, 1994, at 2.

The language of the new juvenile guardianship statute was derived from a nearly identical New Mexico statutory scheme. See Ariz. Senate, H.B.2062, Minutes of the Committee on Judiciary, March 8, 1994, at 4; see N.M.S.A. § 32A-4-31 to -32. Both the New Mexico and Arizona statutory schemes for permanent guardianship of a dependent or neglected child were adopted to prevent the conflicts that often arose between probate and juvenile laws regarding guardianship of these children. See Arizona Dept. of Econ. Sec. v. Superior Court, 186 Ariz. 405, 407, 923 P.2d 871, 873 (App.1996); In re Guardianship Petition of Lupe C., 112 N.M. 116, 812 P.2d 365, 370-71 (App.1991). These more stringent guardianship statutes thus required, for removal of a guardian, proof by clear and convincing evidence of a statutory ground, such as the guardian's inability to properly care for the child, and a finding that the child's best interests would be served by revocation of the guardianship. A.R.S. § 8-525.02; N.M.S.A. § 32A-4-32. The trial court's discretion therefore is less broad under the juvenile permanent guardianship statutes than it is under the probate code provisions regarding other guardianships.

The aunt argues that these more stringent statutory requirements for revocation of the permanent guardianship make it more akin to a termination of parental rights than to a change of custody in a dependency proceeding. For example, she notes that revocation of the guardianship requires proof by clear and convincing evidence, the same burden as for a severance of parental rights. See generally A.R.S. § 8-533(B)(statutory grounds for termination of parental rights); In Matter of Maricopa County, Juv. Action No. JA 33794, 171 Ariz. 90, 828 P.2d 1231 (App.1991)(grounds for severance must be proven by clear and convincing evidence). However, this argument overlooks the fundamental constitutional rights afforded parents to the care, custody, and control of their children. See In Matter of Pima County Juv. Sev. Action No. S-120171, 183 Ariz. 546, 905 P.2d 555 (App.1995). It also overlooks the "hybrid" nature of the statutory permanent guardianship. While the permanent guardian is provided with most of "the powers and responsibilities of a parent who has not been deprived of custody," A.R.S. § 14-5209, the child remains a ward of the court pursuant to the dependency, and the court has continuing jurisdiction to review and enforce the guardianship order, A.R.S. § 8-525.01(I). Indeed the juvenile court even commented on the unique nature of this statutory relationship:

I don't know if I view a permanent guardianship in the same posture as a parent. The permanent guardian in this case was still under the court's supervision.... It may be neither fish nor fowl....

In this case, the statutory ground alleged as the basis for revocation of the guardianship was that substantially changed circumstances existed in that the aunt was "unable to properly care for the child." See A.R.S. § 8-525.02(A)(2). This ground is very similar to one of the statutory definitions of a "dependent" child:

"Dependent child" means a child who is adjudicated to be:

(a) In need of proper and effective parental care and control...