Research – Right to Intervention by MGM in Dependency Action

Author: LegalEase Solutions 

RESEARCH FINDINGS

  1. Does MGM have standing to intervene under Arizona Rules of Juv Ct, Rules of Civil Procedure (Rule 24) or case law *(such as Bechtel v. Rose, 150 Ariz. 68) and any other, more CURRENT case law or other ideas?

Arizona’s Supreme Court held that “‘the tenor of Arizona’s legislative and judicial decisions, as well as sound public policy, favors the important role of grandparents in maintaining the ‘integrity of the family.’ Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211, 217 (Ct. App. 2013) (quoting Bechtel v. Rose In & For Maricopa Cnty., 150 Ariz. 68, 74–75, 722 P.2d 236, 242–43 (1986)). The court in Bechtel considering this policy and the fact there were no parents involved in the dependency, noted that 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.’” Roberto F., 301 P.3d 211, 217 (quoting Bechtel, 150 Ariz. at 73, 722 P.2d at 241).

“In addition to establishing grounds for intervention under Rule 24, any third party seeking intervention in a dependency case must show that intervention is in the child’s best interests.(Id.). In making such a determination, courts must weigh and consider a number of factors, referred to as the “Bechtel factors.” (Id.). These 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., 301 P.3d 211, 218 (quoting Bechtel, 150 Ariz. at 72, 722 P.2d at 240).

In Matter of Appeal in Maricopa Cnty. Juvenile Action No. JS-7135, 155 Ariz. 472, 747 P.2d 633 (Ct. App. 1987) it was held that “trial court properly denied grandparents’ motion to intervene because the child was not “parentless or in any way ‘bereft of family,’ ” both parents were living and actively seeking custody, the State was not “attempting to assert custody or guardianship rights superior to the natural ties between the child and its family,” and there was “no issue nor even the suggestion of a non-familial placement of the child”.

However, in  Allen v. Chon-Lopez, 214 Ariz. 361, 364-65, 153 P.3d 382, 385-86 (Ct. App. 2007) it was held that the trial court erred in denying aunt’s motion to intervene in a dependency case where aunt was a member of child’s family and, although the child was not technically parentless, his parents had “consistently avoided their parental obligations”.

Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211, 217-18 (Ct. App. 2013). Likewise, in our case MGM may argue that although the child was not technically parentless, his father had consistently avoided his parental obligations and is still doing so by not providing any support.

“A grandparent who is a resident of the same state as the children and who has enjoyed access to the children is in a position to “shed valuable light” on the best placement for them.” William Z. v. Arizona Dep’t of Econ. Sec., 192 Ariz. 385, 388, 965 P.2d 1224, 1227 (Ct. App. 1998).  The Court in this case observed that grandparent’s permissive intervention in the child dependency proceeding was in best interests of children, even though in this case both parents were living. William Z. v. Arizona Dep’t of Econ. Sec., 192 Ariz. 385, 388, 965 P.2d 1224, 1227 (Ct. App. 1998).

Given below are two recent cases which can be interpreted to support the view that MGM has standing to intervene.

Allen v. Chon-Lopez, 214 Ariz. 361, 362-63, 153 P.3d 382, 383-84 (Ct. App. 2007).

This case is a special action in which “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,’” the court accepted special action jurisdiction. Allen v. Chon-Lopez, 214 Ariz. 361, 362-63, 153 P.3d 382, 383-84 (Ct. App. 2007), quoting (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)).

The Court in Allen referred to Bechtel, wherein Arizona’s 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. The Allen Court found that 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). Allen v. Chon-Lopez, 214 Ariz. 361, 364, 153 P.3d 382, 385 (Ct. App. 2007).

The court noted that “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.”  The court concluded Allen’s eligibility to have T. placed with her meets the requirement of Rule 24(b)(2).Allen v. Chon-Lopez, 214 Ariz. 361, 364-65, 153 P.3d 382, 385-86 (Ct. App. 2007).

“‘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.” Allen v Chon-Lopez, 214 Ariz 361, 364; 153 P3d 382, 385 (2007) quoting 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.’ ”Allen v Chon-Lopez, 214 Ariz 361, 364; 153 P3d 382, 385 (2007).

“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.” Allen v Chon-Lopez, 214 Ariz 361, 365; 153 P3d 382, 386 (2007). “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 and only if they show that intervention would not be in the best interest of the child should intervention be denied.’” Id. at 74, 722 P.2d at 242.Allen v. Chon-Lopez, 214 Ariz. 361, 365, 153 P.3d 382, 386 (Ct. App. 2007).

Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211 (Ct. App. 2013)

 

The Court of Appeals in this case reviewed the decision of the trial court which found that A.R.S. § 25–415(A) (now A.R.S. § 25–409(A)), when interpreted in light of the supreme court’s decision in Bechtel, 150 Ariz. at 72, 722 P.2d at 240, provided a conditional right for Foster Parents to intervene under Rule 24(b)(1). Trial court reached this conclusion by determining that Foster Parents stood in loco parentis to the Children based on the amount of time the Children had lived with them in foster care.

The Court of Appeals held that the trial court erred in concluding Foster Parents had a conditional right to intervene pursuant to Rule 24(b)(1). It further held that “neither A.R.S. § 25–409(A) nor Bechtel creates a conditional right for a foster parent to intervene in a dependency case.”  The Court observed that “Section 25–409(A) permits a non-parent standing “in loco parentis” to a child to initiate a Title 25 child custody proceeding; it does not address intervention in a Title 8 dependency case. Moreover, the decision in Bechtel was not based on A.R.S. § 25–415 or the concept of “in loco parentis.” ” Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211, 217 (Ct. App. 2013).

However, the court upheld the trial court’s finding that there were common questions of law and fact between the Foster Parents’ termination petition and the dependency proceeding for granting the foster parents’ motion to intervene pursuant to Rule 24(b)(2). For this finding the court reasoned that “When Foster Parents filed their termination petition, the primary case plan in the dependency case was reunification; however, there was also a concurrent case plan of severance and adoption. In addition, the issue of termination had already been raised by the GAL, and might have been raised again during the course of the dependency proceeding”. Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211, 218 (Ct. App. 2013).

Further, the court of appeals in this case upheld the intervention in spite of the fact that it noted from review of the record that “the parties already involved in the dependency case were able to adequately and objectively look out for the best interests of the Children”. “At the time of Foster Parents’ intervention, the State, through the Assistant Attorney General and ADES, and the Children, through their attorney and the GAL, were already parties to the case.” Additionally, “the Foster Parents were participants with a right to attend and participate in dependency and review hearings”. The court observed that “nothing in the record leads us to conclude that these parties and participants, absent intervention by Foster Parents, were unable or unwilling to fully promote and protect the best interests of the Children”.

However, the court found that “there is reasonable evidence in the record supporting at least some Bechtel factors that weigh in favor of intervention. Foremost among these factors was the Foster Parents’ significant relationship with the Children and their desire to protect the Children, which the trial court could have reasonably viewed as potentially contributing to the “full development of the underlying factual issues” in the dependency case”. Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211, 219 (Ct. App. 2013).

But, the court vacated the judgment terminating the natural father’s parental rights to his children because the evidence was insufficient to support termination and on finding an irregularity that the trial court erred by terminating Father’s parental rights based, in part, on a theory of abandonment that was not disclosed until the fourth day of a five-day trial.

 

  1. If MGM does not have standing to intervene through a motion in the ongoing dependency case, can she file a cross-Petition to sever the parents’ rights?

 

  1. Being that there is an on-going dependency; can the Court accept a filing for a competing petition (Petition to Sever Parental Rights)? The MGM should have rights to file under ARS 8-533(A).  But, because there is already a pending juvenile court matter can she file.  In general, the juvenile court has sole and exclusive jurisdiction over all matters concerning the juvenile at issue.  R.S. *-202; Michael M. V. Dept of Econ. Sec., 217 Ariz. 230, citing Marshall v. Superior Court, 145 Ariz. 309, 311.

In Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211 (Ct. App. 2013), it is seen that the Foster Parents were permitted to file a petition to sever parental rights while the dependency case was pending. “This separate termination action was filed as Mohave County Superior Court Case No. SV 2011–04001. Foster Parents filed their Petition to Terminate Parent–Child Relationship based on A.R.S. § 8–533(A), which provides that “[a]ny person or agency that has a legitimate interest in the welfare of a child, including, but not limited to … a foster parent … may file a petition for the termination of the parent-child relationship….”Roberto F. v. Arizona Dep’t of Econ. Sec., 232 Ariz. 45, 301 P.3d 211, 214 n.2 (Ct. App. 2013).  Later both the actions were consolidated in a hearing in the dependency case. Id. at 215. Further, the court of Appeals has not adversely discussed relating to this filing or consolidation of the petition.

In Kimu P. v. Arizona Dep’t of Econ. Sec., 218 Ariz. 39, 178 P.3d 511 (Ct. App. 2008), the court of Appeals while discussing the scope of filing a Petition for Termination Pursuant to A.R.S. § 8–533 or under A.R.S. § 8–862, held that ADES may file petition for termination of parental rights under statute governing termination of parent-child relationship or, alternatively, may file a motion for termination under statute governing permanency determination for dependent children.  In this case the juvenile court had ruled that “an ongoing dependency action did not preclude ADES from filing a termination petition under A.R.S. § 8–533”.Id. at 42-43, 178 P.3d 511, 514-15 (Ct. App. 2008).

  1. If she can file a competing petition and being that the current judge hearing the dependency case is interested in reunification with the father, can MGM notice him in order to have a new judge assigned to her case? (Notwithstanding the theory of one family/one judge.) And if she has rights to do either an intervention or file a new Petition – is it better to file a Petition in order to potentially notice the judge.

The Court of Appeals in Lisa K. v. Arizona Dep’t of Econ. Sec., 230 Ariz. 173,180, 281 P.3d 1041,1048 (Ct. App. 2012), review denied (Sept. 25, 2012), held that permitting the court to both direct the Department to file a motion to terminate mother’s parental rights, and to also preside over the severance hearing, was not the equivalent of permitting a judge to order a criminal trial and also preside over the trial, essentially allowing the judge to act as both prosecutor and trier of fact.

When a State acts to terminate a right, it must provide appropriate fair procedures. Lisa K. v. Arizona Dep’t of Econ. Sec., 230 Ariz. 173, 178, 281 P.3d 1041, 1046 (Ct. App. 2012), review denied (Sept. 25, 2012) quoting Mara M., 201 Ariz. 503, ¶ 24, 38 P.3d at 45. Further, all litigants are entitled to a decision rendered by an impartial tribunal. Id.