No. 1 CA-JV 20-0282
COUNSEL The Shanker Law Firm, PLC, Tempe By Tamera Crites Shanker Counsel for Appellants Arizona Attorney General's Office, Mesa By Lauren J. Lowe Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yuma County
The Honorable Kathryn E. Stocking-Tate, Judge Retired
VACATED AND REMANDED
The Shanker Law Firm, PLC, Tempe
By Tamera Crites Shanker
Counsel for Appellants
Arizona Attorney General's Office, Mesa
By Lauren J. Lowe
Counsel for Appellee
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
¶1 Josephine R. and Jose G. appeal the superior court's order denying their motion for reconsideration after the court denied their petition for certification to adopt their foster child, A.S. The Department of Child Safety ("DCS") agrees and joins Appellants' request for relief. For reasons that follow, we vacate and remand.
FACTS AND PROCEDURAL BACKGROUND
¶2 A.S., who is now two years old, has lived with Appellants since her birth. A.S. is a dependent child, and the rights of her biological parents have been terminated, with the court noting that her placement with Appellants was an adoptive placement that was "meeting all of her needs." Appellants applied for a preadoption certification of their fitness to adopt under A.R.S. § 8-105. Although the Arizona's Children Association ("AZCA") recommended certification (a recommendation that has never changed), the superior court denied the request without a hearing. The court held a reconsideration hearing during which both DCS and A.S.'s guardian ad litem supported certification. Nevertheless, the court reaffirmed its prior ruling, citing Appellants' finances, their ages, and Jose's health, as well as the lack of a long-term care plan for A.S. Appellants timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
¶3 We review the superior court's denial of a request to become an adoptive parent for an abuse of discretion, affirming "if evidence in the record supports the court's ruling." Leslie C. v. Maricopa Cnty. Juv. Ct., 193 Ariz. 134, 135 (App. 1997). We review issues of law de novo. In re Adoption of A.R., 241 Ariz. 356, 357, ¶ 3 (App. 2016).
¶4 Appellants argue they provided "unrefuted evidence" to address any concerns about their finances, ages, and successor guardians, as well as Jose's health. They also note that AZCA, DCS, the Foster Care Review Board ("FCRB"), A.S.'s guardian ad litem, and A.S.'s biological
mother all agree that their adopting A.S. is in her best interests. DCS joins in Appellants' briefing and request for relief.
¶5 Before petitioning the court to become an adoptive parent, a prospective parent must "be certified by the court as acceptable to adopt children." A.R.S. § 8-105(A). To determine whether a potential adoptive parent is fit, the court must consider the parent's social history; finances; moral fitness; religious background; physical and mental health; history of court actions for child abuse, dependency, or others; desire to be placed on the central registry; criminal record; and "[a]ll other facts bearing on the issue of the fitness of the prospective adoptive parents." A.R.S. § 8-105(E)-(F), (I).
¶6 After reviewing the record, we hold that the superior court abused its discretion by denying Appellants' request to be certified as potential adoptive parents. Notably, the denial of the petition to certify went counter to the recommendation of every party before the court, including state agencies charged with assessing the best interests of A.S., individuals appointed to represent the best interests of the child, and the child's birth parent. Indeed, no interested participant has filed a brief on appeal in support of the denial of the petition to certify. In this context, we conclude that although an agency's determinations—factual or otherwise—are not binding, absent extraordinary circumstances not present here, great deference is owed to a unanimous conclusion reached by AZCA, DCS, the FCRB, and A.S.'s guardian ad litem that adoption certification is in the child's best interests. Thus, the superior court erred by rejecting the analysis of these entities and individuals regarding (1) the best interests of A.S., (2) Appellants' finances, (3) Appellants' ages, and (4) the health of Jose.
I. Best Interests.
¶7 A.S.'s best interests are paramount when considering the petition. See A.R.S. § 8-116(A); cf. Ariz. R.P. Juv. Ct. 67; Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003); Dep't of Child Safety v. Beene, 235 Ariz. 300, 304, ¶ 9 (App. 2014). A child's stability and bond with the placement is a key factor to consider in the best-interests determination. See Navajo Nation v. Ariz. Dep't of Econ. Sec., 230 Ariz. 339, 347, ¶ 30 n.9 (App. 2012).
¶8 A.S. has been in Appellants' continuous care since her birth. Josephine was at the hospital with A.S.'s biological mother when she gave birth, and Appellants have cared for A.S. ever since. Appellants are the only parents that A.S. has known. The record shows, and the superior court found, that Appellants "are her mom and dad" and are "devot[ed]" to A.S.
Moreover, the court stated that A.S. has "received excellent care." This undisputed best-interests inquiry heavily favors the petition.
II. Appellants' Finances.
¶9 Appellants next contend that the superior court's concerns about their finances were unwarranted because Appellants have been meeting A.S.'s needs without financial assistance from DCS.
¶10 The "financial condition of the applicant" is a relevant consideration. A.R.S. § 8-105(F)(2). Here, the AZCA report shows Appellants' monthly income exceeds their monthly expenses. Appellants rely on Medicare and AHCCCS for medical and dental insurance, as is their right. Most importantly—and as the superior court itself recognized—Appellants have afforded adequate care for A.S. since her birth. Appellants have met A.S.'s needs without financial assistance from DCS, even though as foster parents they likely could have obtained such assistance. On this record, Appellants' finances are not disqualifying.
III. Appellants' Ages.
¶11 Appellants argue a potential adoptive parent's age, standing alone, is "not an appropriate disqualifying factor" for adoption certification. DCS goes further, claiming consideration of Appellants' ages is "simply irrelevant."
¶12 Age is not one of the considerations listed under A.R.S. § 8-105(F) when assessing prospective adoptive parents' fitness. Nevertheless, after noting she was the same age as Jose, the judge expressed concern about "running around after a three-year-old" or if A.S. "starts to act like a 12-year-old kid and starts talking back and she's bigger than you . . . [t]hat's why you have your kids when you're young." The statute, however, does not direct a subjective age-based inquiry based on the court's experience or history.
¶13 The court expressed concern about an alternate caregiver plan "should [Appellants'] health be impaired or should one or both of them die." The court noted that Appellants' proposed alternate caregivers, who live in a different county, are also in their 60s. And an alternative caregiver plan properly could "bear on the issue of the fitness of the prospective adoptive parents." A.R.S. § 8-105(F)(8). Here, however, the record does not indicate that the age and location of the alternative caregivers was disqualifying. Moreover, there is nothing in the record suggesting health or other concerns about the alternative caregivers.
IV. Jose's Health.
¶14 Medical history of a potential adoptive parent properly may be considered. Leslie C., 193 Ariz. at 135; see also A.R.S. § 8-105(F)(5). The record here shows that Jose had at least one stroke. Jose did not initially disclose his history of strokes to AZCA, which raised a "concern" to the AZCA worker that "Jose's health condition (heart failure)" would impact "his ability to continue caring for [A.S.] in the future." In the end, however, AZCA supported the petition. Moreover, no medical evidence showed that Jose would be an unfit parent. Jose's physicians stated that his medical conditions were being successfully managed, and they indicated that he "does not have any medical, emotional, or other condition that would interfere with the ability to care for, nurture, or supervise children." Jose's health properly was a concern, but no evidence showed that it disqualified him as an adoptive parent. Furthermore, no concerns were raised with Josephine's health.
¶15 The superior court abused its discretion in its assessment that Appellants' ages, health, and financial condition precluded certification as adoptive parents. And although the court is not bound by the recommendations of other entities and people involved, we find compelling the support of DCS, AZCA, and A.S.'s guardian ad litem—the entities and individuals charged with looking out for the best interests of the child. Accordingly, denying the petition was error, and we vacate the ruling and remand for further proceedings consistent with this decision.