Lisa K. v. Ariz. Dep't of Econ. Sec.

• Decision Date: 26 June 2012
• Docket Number: No. 2 CA–JV 2012–0007.,2 CA–JV 2012–0007.
• Citation: 637 Ariz. Adv. Rep. 31,281 P.3d 1041,230 Ariz. 173
• Parties: LISA K., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Julian N., Appellees.
• Court: Arizona Court of Appeals

230 Ariz. 173

281 P.3d 1041

637 Ariz. Adv. Rep. 31

LISA K., Appellant,

v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Julian N., Appellees.

No. 2 CA–JV 2012–0007.

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

June 26, 2012.

Sanders & Sanders, P.C. By Ken Sanders, Tucson, Attorneys for Appellant.

Thomas C. Horne, Arizona Attorney General By Claudia Acosta Collings, Tucson, Attorneys for Appellee Arizona, Department of Economic Security.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 Lisa K. appeals from the juvenile court's order terminating her parental rights to her son, Julian N., born in July 2009, based on mental illness or chronic substance abuse and the length of time in court-ordered care.¹SeeA.R.S. § 8–533(B)(3), (B)(8)(c). The sole claim Lisa raises on appeal is that A.R.S. § 8–862 is unconstitutional and resulted in a violation of her due process rights, requiring us to vacate the termination order.² For the reasons set forth below, we affirm.

¶ 2 A juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that any statutory ground for severance exists and if it finds by a preponderance of the evidence that severance is in the child's best interests. A.R.S. §§ 8–533(B), 8–537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). “On review, ... we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App.2002). And, we view the evidence in the light most favorable to upholding the court's ruling. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20, 995 P.2d 682, 686 (2000).

Background

¶ 3 The relevant facts are essentially undisputed and, together with the procedural history of this case, are as follows. Based on reports of domestic violence between Lisa and Julian's father and a subsequent investigation, the Arizona Department of Economic Security (ADES) removed Julian from Lisa's care in November 2009, when he was four months old. After Lisa admitted the allegations in the dependency petition, the juvenile court adjudicated Julian dependent in February 2010 and approved a case-plan goal of family reunification. The court held a combined permanency hearing and dependency review hearing in November 2010, at which it gave Lisa three more months to comply with the case plan and achieve reunification with Julian. After the continued permanency hearing in February 2011, the court found Lisa had been “substantially compliant” with the case-plan goals, but she nevertheless had “failed to benefit from the case plan services provided thus far to the extent that the Court would have hoped and expected” and remained either unable or unwilling to adequately parent Julian. Although ADES recommended changing the case-plan goal to severance and adoption, the court also found appropriate a concurrent goal of family reunification.

¶ 4 In April 2011, Lisa filed a motion pursuant to Rule 58(D), Ariz. R.P. Juv. Ct., in which she opposed the changed case-plan goal and requested an evidentiary hearing on that issue. At a combined hearing on the motion and dependency review on May 3, ADES did not oppose Lisa's motion, and the juvenile court granted it, setting an evidentiary hearing commencing on May 23. In July, following three days of hearings, the court determined it clearly was in Julian's best interests to change the case-plan goal to severance and adoption. In accordance with § 8–862(D)(1),³ the court directed ADES to file a motion to terminate Lisa's parental rights to Julian within ten days. In its motion to terminate, filed on July 28, 2011, ADES alleged as grounds for termination mental illness or substance abuse and length of time in court-ordered out-of-home care. See§ 8–533(B)(3), (B)(8)(c). ADES also alleged that terminating Lisa's parental rights was in Julian's best interests.

¶ 5 In August 2011, Lisa filed a special action petition in which she asked this court to find § 8–862 unconstitutional insofar as it permits the same judge who finds the case-plan goal of severance and adoption in a child's best interests and directs ADES to file a motion to terminate a parent's rights, to then preside over the termination hearing. We declined to accept special action jurisdiction on September 15, 2011. Lisa subsequently filed a “Motion to Declare A.R.S. § 8–862 Unconstitutional” in the juvenile court, which the court denied, finding the statute constitutional “as applied to the mother in this case.” Lisa then filed a second special action petition in this court, challenging the constitutionality of § 8–862. We declined to accept jurisdiction.

¶ 6 On November 1, 2011, Lisa filed a notice in the juvenile court, stating she had filed a civil rights complaint in the United States District Court for the District of Arizona. On the first day of the contested severance hearing, Judge Gus Aragón, the judge assigned to this case, informed the parties that although a federal action had been filed in the matter naming him personally as a defendant, he saw no reason to recuse himself. Judge Aragón then asked if “anybody need[ed] to make further record on that.” Lisa's attorney responded that he had filed the federal lawsuit, which was “no different than the special actions that [had] been filed previously [in this matter]” and added that he did not “see any reason to ask [the] Court to recuse itself from the action.” ⁴ Judge Aragón therefore proceeded with the severance hearing. After four days of hearingsbetween November 2011 and January 2012, the judge granted ADES's motion and terminated Lisa's parental rights to Julian.

Standing

¶ 7 On appeal, Lisa argues § 8–862 is facially unconstitutional in that it permits the same judge who orders ADES to file the motion to terminate a parent's rights to also preside over the severance hearing. Although ADES argued in its answering brief that Lisa has no standing to challenge the constitutionality of § 8–862, it conceded the issue at oral argument. We likewise conclude Lisa has standing. See Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 349, 842 P.2d 1355, 1362 (App.1992) (initial question in constitutional challenge to statute whether party has standing to assert claim); see also State v. Herrera, 121 Ariz. 12, 15, 588 P.2d 305, 308 (1978) (“In order to possess standing to assert a constitutional challenge, an individual must himself have suffered some threatened or actual injury....”) (citation omitted). However, the challenge to the facial constitutionality of a statute requires only “an inquiry into whether the law itself is unconstitutional, [and] not into whether the application of the law violates a particular individual's rights.” Hernandez v. Lynch, 216 Ariz. 469, ¶ 8, 167 P.3d 1264, 1267 (App.2007). Because Lisa has argued that her due process rights to an impartial tribunal were violated by operation of § 8–862, and that the statute has no valid application for those similarly situated, she has standing to assert this claim without proof of an actual bias on the part of the particular juvenile court judge.

Is § 8–862 Facially Unconstitutional?

¶ 8 Lisa contends § 8–862 is facially unconstitutional because it permits the same judge who directed ADES to file the motion to terminate a parent's rights to preside over the hearing on that motion and decide whether to grant it. She argues the statute thereby violates a parent's right to have the case heard and decided by an impartial factfinder, resulting in a violation of the parent's due process rights. Lisa asserts there are no circumstances in which application of § 8–862(D) as written would be valid. Arizona generally follows the standard set forth in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which provides that to successfully challenge the facial validity of a statute, the challenging party must demonstrate no circumstances exist under which the challenged statute would be found valid. See Hernandez, 216 Ariz. 469, ¶ 8, 167 P.3d at 1267. “If we find that there is no set of circumstances under which the statute can be found constitutional, then it must be found unconstitutional.” State v. Seyrafi, 201 Ariz. 147, n. 4, 32 P.3d 430, 432 n. 4 (App.2001).

¶ 9 “We review alleged constitutional violations de novo, ... and when possible, construe statutes to uphold their constitutionality.” State v. Hargrave, 225 Ariz. 1, ¶ 42, 234 P.3d 569, 581 (2010) (citations omitted). “We presume a statute to be constitutional and will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions.” Graville v. Dodge, 195 Ariz. 119, ¶ 17, 985 P.2d 604, 608 (App.1999). The burden of establishing that a statute is unconstitutional is on the person challenging the statute. In re Maricopa Cnty. Juv. Action No. JT9065297, 181 Ariz. 69, 81, 887 P.2d 599, 611 (App.1994). We review issues of statutory interpretation de novo. See State v. Barnett, 209 Ariz. 352, ¶ 7, 101 P.3d 646, 648 (App.2004). “If a statute's language is clear and unambiguous, courts must give effect to that language and need not employ the rules of statutory construction.” Seyrafi, 201 Ariz. 147, ¶ 11, 32 P.3d at 433.

¶ 10 “The touchstone of due process under both the Arizona and federal constitutions is fundamental fairness,” State v. Melendez, 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992), whereas “[p]rocedural due process guarantees that permissible governmental interference is fairly achieved.” Simpson v. Owens, 207 Ariz. 261, ¶ 17, 85 P.3d 478, 484 (App.2004). And, “a parent indeed does have a fundamental interest in the care, custody and control of her child, a right that is protected by the Due Process Clause of the United States Constitution.” Mara M. v. Ariz....