Jones v. Anderson
| Decision Date | 23 August 2018 |
| Docket Number | No. 1 CA-SA 18-0169,1 CA-SA 18-0169 |
| Parties | JENNIFER JONES, Petitioner, v. THE HONORABLE ARTHUR ANDERSON, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, DEPARTMENT OF CHILD SAFETY; ADONISE W.; FAEGIN W.; F.W.; A.W., Real Parties in Interest. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Special Action from the Superior Court in Maricopa County
The Honorable Arthur T. Anderson, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
Horne Slaton PLLC, Scottsdale
By Thomas C. Horne (argued), Kristin M. Roebuck Bethell, Ida Araya
Counsel for Petitioner
By Dawn R. Williams (argued)
By Robert D. Rosanelli
Counsel for Real Parties in Interest F.W., A.W.
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Real Party in Interest Faegin W.
Gary Alan Wieser Attorney at Law, Phoenix
By Gary A. Wieser
Counsel for Real Party in Interest Adonise W.
MEMORANDUM DECISIONJudge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined.
¶1 Jennifer Jones seeks special action relief from superior court orders denying her motions to intervene in a dependency action filed by the Department of Child Safety ("DCS") regarding two children, A.W. and F.W. (the "Children"), whom Jones had foster-parented for 22 months. Jones also seeks relief from the superior court's order finding Jones and her attorneys violated Arizona Revised Statutes ("A.R.S.") section 8-807(U). For the following reasons, we accept jurisdiction and grant relief, holding the superior court abused its discretion in how it denied Jones's motions to intervene, and by granting the § 8-807(U) motion without allowing Jones and her attorneys the opportunity to respond.
¶2 In March 2016, due to abuse and neglect, DCS petitioned the superior court to find the Children dependent as to their biological mother and father, took temporary physical custody of the Children, and placed the Children in Jones's care. The superior court subsequently found theChildren dependent as to both parents in June 2016. The Children continued to live with Jones, but in September 2017, DCS moved to change physical custody of the Children to the Children's paternal aunt ("Aunt"). After an evidentiary hearing in November 2017, the superior court ordered the Children transitioned to Aunt's custody. Jones was present at the change in physical custody hearing, but was not represented by counsel and did not participate. By January 21, 2018, the Children were living full-time with Aunt.
¶3 On January 26, 2018, Jones petitioned the superior court to terminate the Children's biological parents' rights. The same day, she also moved to intervene in DCS's ongoing dependency case against the Children's parents. Both DCS and the Children's father objected to Jones intervening in the DCS action. The superior court denied Jones's motion to intervene, finding
¶4 In May 2018, Jones amended her petition to terminate after learning the biological parents intended to consent to the Children's adoption. She also filed a renewed motion to intervene. Approximately one month later, Jones supplemented her renewed motion to intervene to attach an affidavit of a private investigator Jones hired to investigate Aunt. DCS, the Children's father, and the Children's guardian ad litem objected to Jones intervening in the DCS action. The superior court summarily denied Jones's renewed motion to intervene on June 22, 2018.1
¶5 On June 27, 2018, the case plan in the dependency action was changed to severance and adoption, and DCS moved to terminate the Children's parents' rights the following day. After DCS moved to terminate, the superior court dismissed Jones's termination petition. Jones then petitioned this court for special action review.2
¶6 An order denying a motion to intervene is an appealable final order. Bechtel v. Rose, 150 Ariz. 68, 71 (1986). However, Arizona courts have repeatedly accepted special action jurisdiction of juvenile cases involving the denial of a motion to intervene because the petitioner has no "equally plain, speedy, and adequate remedy by appeal." See Ariz. R.P. Spec. Act. 1(a); see also Bechtel, 150 Ariz. at 72; Allen v. Chon-Lopez, 214 Ariz. 361, 362, ¶ 1 (App. 2007); J.A.R. v. Superior Court, 179 Ariz. 267, 273 (App. 1994); ADES v. Superior Court (Alagna), 173 Ariz. 26, 27 (App. 1992). Accordingly, we accept special action jurisdiction.
¶7 Jones argues the superior court erred by denying her motions to intervene in DCS's dependency action against the Children's biological parents and by finding she and her attorneys violated § 8-807(U).
¶8 Jones argues the superior court abused its discretion by denying her motions to intervene based upon our supreme court's decision in Bechtel claiming the court was obligated to make specific findings. See Bechtel, 150 Ariz. at 73-74. DCS counters the superior court did not err by denying Jones intervention because the record shows the court considered Bechtel and because Jones had the right to participate in the proceedings as a foster parent under A.R.S. § 8-847 and that right was not abridged. We agree with Jones that the superior court abused its discretion by denying Jones's motions to intervene without making the required Bechtel findings.
¶9 Jones moved to intervene in DCS's dependency action based upon Arizona Rule of Civil Procedure 24(b). Under Rule 24(b)(1), the superior court "may permit anyone to intervene who: (A) has a conditional right to intervene under a statute; or (B) has a claim or defense that shares with the main action a common question of law or fact." "In exercising its discretion over permissive intervention, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Ariz. R. Civ. P. 24(b)(3). Rule 24 "is remedial and should be liberally construed with the view of assisting parties in obtaining justice and protecting their rights." Bechtel, 150 Ariz. at 72 (quoting Mitchell v. City of Nogales, 83 Ariz. 328, 333 (1958)). We review the superior court's ruling on a motion to intervene for an abuse of discretion. Roberto F. v. ADES, 232 Ariz. 45, 49, ¶ 17 (App. 2013) (as amended). An abuse ofdiscretion occurs if the superior court commits an error of law while exercising its discretion, Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005), and a summary denial of a motion to intervene is an abuse of discretion, William Z. v. ADES, 192 Ariz. 385, 389, ¶ 22 (App. 1998).
¶10 If either condition for intervention under Rule 24(b) has been satisfied in a juvenile proceeding, the superior court "must determine whether the party opposing intervention has made a sufficient showing that intervention is not in the child[ren]'s best interest." Allen, 214 Ariz. at 365, ¶ 12; see also Bechtel, 150 Ariz. at 73. In making that determination, the court must consider a number of factors identified in Bechtel. Allen, 214 Ariz. at 365, ¶ 12. Those factors are:
(1) "the nature and extent of the intervenors' interest" in the dependency case, (2) the intervenors' "standing to raise relevant issues" in the dependency case, (3) the legal position the interveners "seek to advance, and its probable relation to the merits of the case," (4) "whether the interveners' interests are adequately represented by other parties" already present in the litigation, (5) "whether intervention will prolong or unduly delay the litigation," and (6) "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."
Roberto F., 232 Ariz. at 52, ¶ 33 (quoting Bechtel, 150 Ariz. at 72).
¶11 This court has previously held a superior court will not abuse its discretion by permitting foster parents to intervene if it concludes that they share common issues of law or fact with a pending DCS-initiated case. Roberto F., 232 Ariz. at 52-54, ¶¶ 32, 40. In this case, in its order denying Jones's first motion to intervene, the superior court did not address Bechtel but found
¶12 DCS argues the court correctly found that as a foster parent, Jones had the right to participate in review proceedings in the dependency action, that Jones "participated in numerous" hearings, and that the superior court's orders did not abridge that right. Under § 8-847(B), "[a]ny foster parent in whose home the child resided within the last six months" must be given notice of periodic review hearings held after a dependency disposition hearing and has "the right to participate in the proceeding." (Emphasis added). At the time the superior court denied Jones's firstmotion to intervene, the Children had been living with Jones within the last six months. Thus, the court was correct in finding she had a right to "participate" in the proceedings and there is no evidence in the record Jones was denied information, documents, or the right to participate she was entitled to as a former foster parent.3
¶13 However, as DCS recognized in its response to this special action, "participants" are not afforded the same rights as "parties" in juvenile proceedings. S...
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