Bechtel v. Rose In and For Maricopa County

• Decision Date: 18 June 1986
• Docket Number: No. CV-86-0043-SA,CV-86-0043-SA
• Citation: 150 Ariz. 68,722 P.2d 236
• Parties: Marlyn BECHTEL, Petitioner, v. Hon. C. Kimball ROSE, Judge, Superior Court In and For the COUNTY OF MARICOPA, Respondent, and The ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Real Party in Interest.
• Court: Arizona Supreme Court

Page 236

722 P.2d 236

150 Ariz. 68

Marlyn BECHTEL, Petitioner, v. Hon. C. Kimball ROSE, Judge, Superior Court In and For the COUNTY OF MARICOPA, Respondent and The ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Real Party in Interest.

No. CV-86-0043-SA.

Supreme Court of Arizona, In Banc.

June 18, 1986.

Mahoney, Lehman, Rood & Rempe, P.C. by John W. Rood, Phoenix, for petitioner.

Robert K. Corbin, Atty. Gen., John E. Wolfinger, Asst. Atty. Gen., Phoenix, for real party in interest.

GORDON, Vice Chief Justice.

This special action raises novel and complex questions with regard to grandparents' rights in the disposition of their parentless grandchildren. The particular issues that we must address are: did the juvenile court commit reversible error by denying the grandmother's motion to intervene in her grandchild's dependency hearing; and by denying the grandmother's petition for appointment as her grandchild's guardian and conservator?

The factual background giving rise to this case is not in dispute. The infant around whom swirls this controversy was born in March, 1985. In September, 1985, when the infant was six months old, his mother was killed in an auto accident. Immediately thereafter, the Department of Economic Security ("DES") assumed care and custody of the infant pending permanent resolution of his case. On October 2, 1985, a dependency commitment hearing was held concerning the infant. On that occasion, the maternal grandmother appeared through counsel but was advised that she had no standing in the matter but could move to intervene at a later time. The dependency hearing was continued until January 29, 1986, and the infant was ordered to remain a temporary ward of the juvenile court and committed to the custody of the DES until that time. The grandmother's request to review the dependency file was denied.

On November 21, 1985, the father of the infant formally relinquished his parental rights to the child. Six days later the grandmother filed a motion to intervene pursuant to Rule 24(b), Arizona Rules of Civil Procedure, 16 A.R.S. The motion was accompanied by a proposed Petition for Appointment as Guardian and Conservator of the Minor. Oral argument was requested but denied. On December 5, 1985, the court denied the motion to intervene, and on January 15, 1986, denied the petition for appointment as guardian. On January 24, 1986, the grandmother filed this special action seeking relief from the denial of her motion to intervene and petition for guardianship. On the same day we entered a stay of all proceedings and ordered "that the respondent court not conduct any proceedings in this matter which award the minor child to any person or institution until further order of this court."

I.

As a preliminary matter we must address the jurisdiction of the Court to entertain this special action. The state contends that Rule 25(a), Rules of Procedure of the Juvenile Court, 17A A.R.S., grants to petitioner the right to appeal the denial of intervention and guardianship since they constitute final orders. ¹ Moreover, the state argues that not only is the avenue of appeal available, but that Rule 24(c), Rules of Procedure of the Juvenile Court, gives priority to juvenile appeals and thereby provides an "equally plain, speedy and adequate remedy." See Rule 1, Rules of Procedure for Special Actions, 17A A.R.S.

In response the petitioner argues that denial of a motion to intervene is a nonappealable order, citing Cobre Grande Copper Co. v. Greene, 8 Ariz. 98, 68 P. 524 (1902). In truth Cobre Grande does hold that "[the] right of appeal is manifestly only for parties to the suit....", 8 Ariz. at 101, 68 P. at 525, and obviously a movant denied intervention is simultaneously denied party status. However, the vitality of Cobre Grande has debilitated with the passage of time and it is now woefully out of step with modern civil procedure. For example, Cobre Grande would deny appeal to intervenors of right, even though "[i]t is thoroughly settled that one who has sought intervention of right may appeal from a denial of his application and the appellate court will reverse if it concludes that he was entitled to intervene of right." 7A C. Wright and A. Miller, Federal Practice and Procedure (1972) § 1923, p. 628 (citations omitted). In addition, with regard to permissive intervention, Wright and Miller posit that "[i]t is clear enough what the rule ought to be. Any denial of intervention should be regarded as an appealable final order--as it surely is so far as the would-be intervenor is concerned." 7A Federal Practice and Procedure § 1923, at 627. See also Spangler v. Pasadena City Bd. of Education, 552 F.2d 1326, 1329 (9th Cir.1974) ("Although a district court's discretion in this regard [permissive intervention] is broad, it is nevertheless subject to review on appeal.")

The mere fact that denial of permissive intervention is an appealable order does not mean, however, that appeal in this instance is an "equally plain, speedy, or adequate remedy".

We must be mindful that we are dealing with the care and custody of a very young child and vigilant to protect his right to a suitable and speedy placement. "When the urgent and agonizing nature of the numerous proceedings affecting custody is taken into consideration, with the resulting detriment to the [child] involved, it is apparent that the ultimate remedy available to petitioner by way of appeal is neither plain, speedy, nor adequate." Silver v. Rose, 135 Ariz. 339, 343, 661 P.2d 189, 193 (App.1982).

Where the facts of a case so compel, we have not hesitated to grant extraordinary relief. See, e.g., Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966) (writ of prohibition appropriate where natural father sought to prevent adoption of his illegitimate son). The facts of this case equally compel exercise of our judicial discretion. The infant is now more than one year old, and has already spent one-half of his life bereft of family. An appeal might involve unconscionable delay, and even then "the very question before us now would be before us then, only months or perhaps years later." Silver v. Rose, 135 Ariz. at 343, 661 P.2d at 193. As we noted in Caruso, "[i]t is clear that the propriety of granting the writ depends upon the facts of each case. The guiding principle must be our obligation to see that essential justice is done." 100 Ariz. at 172, 412 P.2d at 466.

Moreover, the issues raised by this case are clearly of significance. Few tasks are more delicate and demanding than the permanent placement of parentless children, and the role that grandparents may play in this process surely implicates statewide concerns. Accordingly, we have assumed jurisdiction in this special action in order "to see that essential justice is done" and a crucial issue addressed.

II.

The petitioner asserts that the juvenile court's denial of intervention was an abuse of discretion. Petitioner sought intervention under Rule 24(b) of the Rules of Civil Procedure, which provides that a movant "... may be permitted to intervene in an action ... [w]hen an applicant's claim or defense and the main action have a question of law or fact in common." Rule 24(b)(2). Permissive intervention is well within the discretion of the trial court, but is nonetheless subject to appellate review. Spangler v. Pasadena City Bd. of Education, supra.

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." Mitchell v. City of Nogales, 83 Ariz. 328, 333, 320 P.2d 955, 958 (1958). Under this liberal standard, "the intervenor-by-permission does not even have to be a person who would have been a proper party at the beginning of the suit...." Usery v. Brandel, 87 F.R.D. 670, 677 (W.D.Mich.1980), citing 7A C. Wright and A. Miller, Federal Practice and Procedure § 1911, at 539. 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. If any of the conditions for intervention have been satisfied, then the trial court may consider other factors in making its decision:

"These relevant factors include the 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."

Spangler v. Pasadena City Bd. of Education, 552 F.2d at 1329 (footnotes omitted).

In the present case there is absolutely no indication that the juvenile court considered these factors; indeed, there is no indication at all as to why the motion was denied. The paucity of the record before us makes it difficult to indulge the discretion of the trial court, but in any case we need not make that endeavor since this particular appeal raises a legal, not factual, issue. The legal issue raised is: should grandparents, as a general rule, be allowed to intervene in the dependency determination of their parentless grandchildren under Rule 24(b)? We answer in the affirmative, and conclude that the juvenile court abused its discretion by summarily denying the petitioner's motion to intervene.

We must premise our discussion of grandparents' intervention rights with the observation that this area of the law involves a complex amalgam of probate law, domestic relations law,...