Arizona Dept. of Economic Sec. v. Superior Court In and For County of Maricopa

• Decision Date: 05 April 1994
• Docket Number: No. 1,CA-SA,1
• Citation: 871 P.2d 1172,178 Ariz. 236
• Parties: ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Laura Estay, a judge thereof, Respondent Judge, and BABY BOY T, I; Baby Boy T, II; Baby Boy B; Baby Boy C; and attorney Paul Theut, Real Parties in Interest. 94-0033.
• Court: Arizona Court of Appeals

Page 1172

871 P.2d 1172

178 Ariz. 236

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Laura Estay, a judge thereof, Respondent Judge and BABY BOY T, I; Baby Boy T, II; Baby Boy B; Baby Boy C; and attorney Paul Theut, Real Parties in Interest.

No. 1 CA-SA 94-0033.

Court of Appeals of Arizona Division 1, Department E.

April 5, 1994.

[178 Ariz. 237] Grant Woods, Arizona Atty. Gen. by Aimee L. Burr, Asst. Atty. Gen., Phoenix, for petitioner.

Theut, Theut & Theut, P.C. by Paul J. Theut and Brian J. Theut, Phoenix, for real parties in interest.

OPINION

NOYES, Judge.

Arizona Department of Economic Security ("DES") filed this special action to obtain a declaration that the juvenile court cannot order DES substituted as the petitioner in a dependency action filed by a private party, even when DES recommends that the court find the children dependent. We accept jurisdiction because the issue is important to the effective administration of justice in the juvenile court and because the parties have no equally plain, speedy, and adequate remedy by appeal. See Ariz.R.P. Special Actions 1(a). For the reasons set forth below, we deny relief.

I.

This dependency action involves four boys, aged 11 years, 10 years, 18 months, and 7 months. These children have the same mother, but each has a different father, and none of the fathers is married to or living with the mother. This family first came to the attention of the juvenile court through delinquency proceedings involving the two older boys. The juvenile court appointed Mr. Paul J. Theut, an attorney in private practice in Phoenix, as guardian ad litem for one of the delinquents. Mr. Theut soon discovered that the mother also had the two baby boys, that she was an apparent drug addict who could not care for her children, that the 18-month-old was missing from the home, and that the older children were basically unsupervised and uncared-for, although receiving some shelter and care from various relatives.

Mr. Theut asked the DES caseworker whether these children were dependent. ¹ The caseworker said that the children were dependent but that DES had not filed a dependency petition because her supervisor did not think the children were dependent. On October 1, 1993, Mr. Theut and several other parties, including a different DES caseworker, were in court on a review of status hearing for the two older boys in their delinquency actions. At that time, Mr. Theut advised the court of the existence of the two babies and the apparent dependency and dire straits of all four children.

The court then appointed Mr. Theut as guardian ad litem for all four children and further provided that it was "authorizing Mr. Theut to file a dependency petition on behalf of the children within 48 hours, excluding weekends and holidays." The court placed the older boys in the temporary physical custody of relatives and ordered that DES "immediately pick up [the two babies] and that these children be placed in the physical care, custody and control of [DES] and that the children be in [DES] custody within one hour after the hearing is completed, if the children can be located." The court also ordered DES to "investigate the living conditions of the children upon picking them up and submit at least a verbal report to Mr. Theut regarding the results."

On October 4, 1993, Mr. Theut filed a dependency petition for the four children. At the initial dependency hearing on October 20, 1993, the court continued the matter to allow Mr. Theut to amend the petition to name all "potential natural fathers," and to try to find and serve all "interested parties." The court also ordered that the children continue as temporary wards of the court committed to the care, custody, and control of DES.

At the continued dependency hearing on December 1, 1993, one of the fathers had been served and was present, but the whereabouts of the 18-month-old and two of the fathers was still unknown. The mother, who was present with her court-appointed attorney, denied that there was a dependency. The DES caseworker had by this time filed a written report in which DES recommended that all four children be found dependent and made wards of the court committed to the care, custody, and control of DES.

The court then asked the assistant attorney general the question that led to this special action:

COURT: ... This file has grown real fast, but why is DES not substituted.

MS. BURR: Your Honor, at this time because there is, because Mr. Theut has filed the petition for dependency, and the State of Arizona does not fall within Rule 25 of the rules of civil procedure as appropriate party to substitute....

COURT: But you're requesting that the children be made wards of the court committed to the care, custody, and control of [DES].

MS. BURR: We recommend, we feel that there is a possible dependency here; however, we don't feel that DES should be substituted in as party petitioner at this time.

The court explained that: "[T]his is a classic dependency. I have a [DES] caseworker who agrees. We're basically spending [County] money on an attorney to do the work of the [State] agency that is mandated by law." Mr. Theut then requested that DES be substituted as the petitioner in the dependency proceeding. When DES objected, the court set a "contested hearing" for the following day, December 2, 1993.

At the next day's hearing, Mr. Theut moved for substitution of counsel. The court questioned both Mr. Theut and Ms. Burr. As a summary of their respective positions, we provide one statement made by each attorney to the court:

MS. BURR: .... We will cooperate with [Mr. Theut] at all costs through the matter of this dependency action. We'll supply services to mother, to the fathers, to the children. We'll assist Mr. Theut in bringing this matter to trial. We'll assist in subpoenaing witnesses. But we don't feel that it should be the burden of [DES] to bring this matter to trial.

....

MR. THEUT: .... I feel it's their job to come forward and relieve private petitioners, especially this type of a case where it was an emergency petition. These children needed emergency care. We had no action from the State at all, and at this point I don't think they are not [sic] opposing this petition. They have the resources. We need the State's action, not inaction here. And for them to not agree to substitution of counsel I feel is wrong.

The court then ordered DES substituted as the petitioner in the dependency action. This order meant that the attorney general's office would be substituted for Mr. Theut as counsel for petitioner. ² DES requested a stay pending this special action. The court denied the request for stay, finding that "[a] delay would unnecessarily prolong [the] action and the children's continued removal from their home." We have jurisdiction pursuant to A.R.S. section 12-120.21(A)(4) (1992).

II.

The primary consideration in a dependency case is always the best interest of the child. Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). Accordingly, the juvenile court is vested with "a great deal of discretion." Id. at 160, 650 P.2d at 462.

This Court previously has held that a dependency petition can be filed by a party other than DES. See Pima County Juvenile Dependency Action No. 98874, 161 Ariz. 231, 232, 778 P.2d 266, 267 (App.1989) ("In contrast to delinquency and severance matters, nothing in the statutes or rules governing dependency proceedings sets forth or limits in any way who may be a party to such a proceeding."). DES does not quarrel with the proposition that someone other than DES can file a dependency petition, but DES now argues that there is no constitutional, statutory, or common law authority that enables the juvenile court to order the substitution of DES as petitioner in a dependency proceeding. According to DES, the issue is controlled by Rule 25, Arizona Rules of Civil Procedure, which pertains to substitution of parties. DES argues that none of the grounds for substitution of parties specified in Rule 25 are present and that, therefore, the court could not order the substitution of DES as petitioner in this case. Mr. Theut contends that the applicable rule of civil procedure is Rule 17, pertaining to designation and appointment of real parties in interest.

We find Rule 17 more relevant than Rule 25, but we do not agree that the issue should be decided solely by reference to the Arizona Rules of Civil Procedure. Although dependency hearings are to be conducted "in a manner similar to the trial of a civil action before the court sitting without a jury," R.P.Juv.Ct. 16.1(b), "the juvenile justice system is unique, having its own purpose and procedure," Maricopa County Juvenile Action No. J-81405-S, 122 Ariz. 279, 280, 594 P.2d 533, 534 (App.1978), vacated on other grounds, 122 Ariz. 252, 594 P.2d 506 (1979). By constitution and statute, the juvenile court has exclusive original jurisdiction over most matters involving juveniles. See Ariz. Const. art. 6, § 15; A.R.S. § 8-202 (1989). There are special rules of procedure for the juvenile court. See R.P.Juv.Ct. 1.

There is also a special relationship between DES and allegedly dependent children. See generally A.R.S. § 8-503 (1989) (providing DES' powers and duties regarding child welfare and placement). No matter who files a dependency petition, the petition seeks state intervention in the parent-child relationship.

This state recognizes that children are not property of their parents whose control may only be interrupted by a finding of fault; on the contrary, Arizona recognizes that children as persons have special needs and rights which are protected by law. One of those rights is the right to effective and proper parental control and care. If a child is found to be without such parental care and control and without...