Allen v. Chon-Lopez

• Decision Date: 08 February 2007
• Docket Number: No. 2 CA-SA 2006-0101.,2 CA-SA 2006-0101.
• Citation: 153 P.3d 382,214 Ariz. 361
• Parties: Grace Howard ALLEN, Petitioner, v. Hon. Javier CHON-LOPEZ, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Arizona Department of Economic Security and T.S.A., Real Parties in Interest.
• Court: Arizona Court of Appeals

153 P.3d 382

214 Ariz. 361

Grace Howard ALLEN, Petitioner, v. Hon. Javier CHON-LOPEZ, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Arizona Department of Economic Security and T.S.A., Real Parties in Interest.

No. 2 CA-SA 2006-0101.

Court of Appeals of Arizona, Division 2, Department B.

February 8, 2007.

Scott E. Myers, Tucson, Attorney for Petitioner.

Suzanne Laursen, Tucson, Attorney for Minor.

Terry A. Goddard, Attorney General By Claudia Acosta Collings, Tucson, Attorneys for Real Party in Interest.

David M. Lujan, Phoenix, Attorney for Amicus Curiae, Justice for Children-Arizona.

OPINION

BRAMMER, Judge.

¶ 1 In this special action, petitioner Grace Allen challenges the respondent judge's denial of her motion to intervene in the underlying dependency proceeding of T., a minor child and Allen's nephew. Because Allen has no "equally plain, speedy, and adequate remedy by appeal," we accept special action jurisdiction. Ariz. R.P. Spec. Actions 1(a), 17B A.R.S.; see Bechtel v. Rose, 150 Ariz. 68, 71-72, 722 P.2d 236, 239-40 (1986) (accepting special action jurisdiction of denial of motion to intervene); J.A.R. v. Superior Court, 179 Ariz. 267, 273, 877 P.2d 1323, 1329 (App.1994) (same). We conclude that the respondent judge abused his discretion and grant relief. Ariz. R.P. Spec. Actions 3(c).

Factual and Procedural Background¹

¶ 2 T. was born September 23, 2003 to Karen A. and Carl R. When T. was one week old, Karen left him with his maternal uncle, Marlon Allen, and Allen, Marlon's "significant other," then named Grace Howard.² Allen filed a dependency petition in April 2004, requesting she and Marlon Allen be given physical custody of T. By July 2004, T.'s parents had signed documents consenting to Allen's and Marlon's adoption of T. Allen and Marlon then moved to dismiss the dependency petition. In August 2004, the juvenile court granted the motion and awarded temporary custody of T. to Allen and Marlon. Although Allen and Marlon have not yet adopted T., they retained temporary custody of him until August 10, 2006.

¶ 3 On August 4, 2006, Allen was taken by ambulance to a hospital after expressing suicidal ideation and using "a large amount of cocaine and alcohol." Allen's subsequent psychiatric evaluation stated she "ha[d] a history of cocaine and alcohol use which ha[d] been in remission for many years." Allen reported she had a long history of depression that had recently worsened because of marital and financial stress. The evaluation recommended that Allen remain hospitalized for five to seven days "for safety, stabilization and diagnostic clarification."

¶ 4 While Allen was hospitalized, Child Protective Services (CPS) "received a report alleging that [T. was] at risk due to his living environment and the adults providing care for him." Allen was apparently released on August 10, the same day CPS removed T. from her and Marlon's home and placed him in a group home. The following day, Karen and Carl signed documents consenting to Allen's adoption of T.

¶ 5 Real party in interest the Arizona Department of Economic Security (ADES) filed a dependency petition on August 15, alleging that "[a]t the present time no adult in [T.'s] home is appropriately caring for [him]." The CPS report to the juvenile court stated Karen and Carl, T.'s biological parents, were living in Marlon's and Allen's home, as was another adult. The report alleged that T.'s parents and the other adult were drug abusers. Allen and Marlon admitted to the CPS investigator "their home environment was a poor one," that "Marlon has a drinking and domestic violence problem," that Allen "has depression and mental instability," and that, although T.'s "biological parents are not suitable parents," Marlon and Allen "let the parents live in their home and care for [T.][ ]alone." The report further stated Allen and Marlon had not proceeded with T.'s adoption because Allen feared she would not pass "the social history portion of the adoption study" and that Marlon "didn't want to spend the money necessary for the adoption."

¶ 6 Allen filed a motion to intervene in the dependency on August 17. Before ruling on that motion, the respondent judge adjudicated T. dependent as to his parents, awarded legal custody of T. to ADES, and ordered that T. "remain in his current placement" at the group home. The respondent judge subsequently denied Allen's motion to intervene despite requesting that ADES "consider [Allen] as a possible placement for [T.] if [she] meets the regular requirements for placement."

¶ 7 On September 6, CPS referred Allen "for a home study" regarding placement but "ruled out" Allen and Marlon "as a possible placement for T." on September 11, apparently because Allen "did not meet the preliminary requirements for placement." In its report to the juvenile court for the permanency hearing, CPS recommended that Karen's and Carl's parental rights be terminated and that T. not be placed with Allen. The report enumerated concerns about Allen's and Marlon's "failure to protect [T.] from his biological parents, from the domestic violence in the home, and from the drug-using roommate." The report also cited "their failure to seek/provide placement for [T.], their risk of substance abuse, the unstable home environment, and unresolved mental issues" as additional concerns.

¶ 8 The respondent judge held a permanency hearing on October 6, finding "the most appropriate plan for [T.] is severance and adoption," and ordered ADES to file a motion to terminate Karen's and Carl's parent-child relationship. Allen filed a second motion to intervene that same day. She included with the motion an Arizona's Children Association's adoptive home study that recommended Allen "be certified as acceptable to adopt." The study noted Allen had "moved to an apartment where she can live alone with [T.,] ha[d] filed for divorce and wants to adopt as a single parent, [and that] Marlon ha[d] agreed to that plan." After a hearing, the respondent judge denied Allen's motion on November 1. This petition for special action followed.

Discussion

¶ 9 Allen sought to intervene in the dependency proceeding pursuant to Rule 24(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 1.³ "When determining whether permissive intervention should be granted, the trial court must first decide whether the statutory conditions promulgated in Rule 24(b)(1) or 24(b)(2) have been satisfied." Bechtel v. Rose, 150 Ariz. 68, 72, 722 P.2d 236, 240 (1986). "It is well settled in Arizona that Rule 24 `is remedial and should be liberally construed with the view of assisting parties in obtaining justice and protecting their rights.'" Id., quoting Mitchell v. City of Nogales, 83 Ariz. 328, 333, 320 P.2d 955, 958 (1958). We review the respondent judge's denial of Allen's motion to intervene for an abuse of discretion. See id.; see also Speer v. Donfeld, 193 Ariz. 28, ¶ 9, 969 P.2d 193, 196 (App.1998) (trial court abuses its discretion if it "base[s] its ruling on an error of law"). ADES contends Allen has not met the threshold requirement of Rule 24(b)(2) that the "applicant's claim or defense and the main action have a question of law or fact in common."

¶ 10 In Bechtel, our supreme court determined that a child's 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." 150 Ariz. at 73, 722 P.2d at 241. The supreme court noted that, under former A.R.S. § 8-241(A)(1)(g), "[g]randparents are among those people eligible to become guardian of a child found to be dependent." Bechtel, 150 Ariz. at 73, 722 P.2d at 241. The statute permitted the juvenile court to place a child with "maternal or paternal relatives, as guardian of the person, provided they are physically and financially able to provide proper care." 1986 Ariz. Sess. Laws, ch. 334, § 3.

¶ 11 Similarly, the current version of that statute permits the juvenile court to award a dependent child "to a grandparent or another member of the child's extended family including a person who has a significant relationship with the child." A.R.S. § 8-845(A)(2). ADES does not dispute that Allen falls within this category. Clearly, if a child's grandparents' interest in the dependency proceeding is sufficient for Rule 24(b)(2) purposes, so is Allen's. She is T.'s maternal aunt and T. had been in her custody for most of his life. And, although T. is not "parentless" like the child in Bechtel, 150 Ariz. at 70, 722 P.2d at 238, T.'s parents have consistently avoided their parental obligations. Indeed, their parental rights are now the subject of a severance proceeding. Like the grandparents in Bechtel, Allen is eligible to be awarded permanent custody of T. And, the supreme court explicitly stated in Bechtel that its ruling was not "necessarily limit[ed] ... solely to grandparents." 150 Ariz. at 73 n. 3, 722 P.2d at 241 n. 3; see also Arizona Dep't of Econ. Sec. v. Superior Court, 173 Ariz. 26, 27, 839 P.2d 446, 447 (App.1992) (applying Bechtel to second cousins seeking to intervene in minor child's dependency action). Accordingly, we conclude Allen's eligibility to have T. placed with her meets the requirement of Rule 24(b)(2).

¶ 12 If the conditions of Rule 24(b) are met, as they are here, then the juvenile court must determine whether the party opposing intervention has made a sufficient showing that intervention is not in the child's best interest. See Bechtel, 150 Ariz. at 73, 722 P.2d at 241 ("[G]randparents ... 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.") (emphasis added). The supreme court in Bechtel concluded that "[b]efore ruling on a motion to intervene, the juvenile court should consider and weigh the relevant factors identified [in the opinion], and only if they...