No. 1 CA-JV 20-0266
COUNSEL The Lara Group PLC, Mesa By Matthew Lara Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Mesa By Eric Devany Counsel for Appellee, Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Apache County
The Honorable C. Allan Perkins, Judge Pro Tempore
JURISDICTION ACCEPTED; RELIEF DENIED
The Lara Group PLC, Mesa
By Matthew Lara
Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Mesa
By Eric Devany
Counsel for Appellee, Department of Child Safety
Presiding Judge David B. Gass delivered the decision of the Court, in which Judge Michael J. Brown and Judge David D. Weinzweig joined.
¶1 Shawn R. appeals a superior court order denying his request to intervene in a dependency proceeding. Because this court may lack jurisdiction to hear Shawn's appeal and the case involves purely legal issues, we exercise our discretion to treat this as a special action. But, because he has no right to intervene and because the superior court did not abuse its discretion, we deny Shawn relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 Shawn began a relationship with Kristine B. in about 2012, living first with her and her three children in Colorado and later in Texas. Two of mother's three children (both with initials D.T.) went to live with their father in Arizona while A.T., the third child, remained with mother and Shawn. After the Department of Child Safety (DCS) initiated dependency proceedings for both D.T.s, mother and Shawn moved to Arizona and participated in the dependency proceedings. Both D.T.s were returned to mother's custody.
¶3 Shawn asked mother to leave the home because, he claims, "[t]here was a lot of fighting going on," and "she was running the streets. She was coming home drunk and not being nice to the kids or nice to me, and it was creating tension in the house." Mother left the home, leaving her three children in Shawn's care. Shortly afterwards, Shawn's girlfriend moved into his home, along with her son. Mother signed a letter intending to give Shawn authority to take care of her children. According to DCS, it then received reports Shawn was neglecting the children.
¶4 One of the D.T.s told DCS he found methamphetamine in Shawn's home, and police and DCS investigated. Shawn's girlfriend told police that she and Shawn would smoke methamphetamine in the home three to four times a week, and Shawn admitted to smoking methamphetamine a couple of times per week. The State charged Shawn
with four counts of child abuse. DCS took custody of both D.T.s and A.T. and filed a dependency petition.
¶5 Shawn moved to intervene in the dependency action, and DCS objected. The children's guardian ad litem supported intervention at first but later took no position. The superior court held an evidentiary hearing, at which Shawn testified and presented two witnesses and four exhibits in support of his motion. DCS presented no evidence. The superior court denied the motion to intervene. Shawn timely appealed.
¶6 DCS questions this court's jurisdiction to hear Shawn's appeal, suggesting he is not an "aggrieved party." See A.R.S. § 8-235.A ("Any aggrieved party in any juvenile court proceeding under this title may appeal from a final order of the juvenile court to the court of appeals . . . .").
¶7 To the extent this court lacks appellate jurisdiction, it has discretion to accept special action jurisdiction "and will generally do so when there is no equally plain, speedy, and adequate remedy by appeal and the case presents purely legal issues, issues involving a matter of first impression, or issues of statewide importance." Dep't of Child Safety v. Stocking-Tate, 247 Ariz. 108, 112, ¶ 7 (App. 2019) (citing Ariz. R.P. Spec. Act. 1(a)). Because Shawn lacks an adequate remedy by appeal and because his case presents purely legal issues, we exercise our discretion, accept special action jurisdiction, and proceed to the merits of his case without deciding whether Shawn is an aggrieved party. See id.; Alexandra K. v. Dep't of Child Safety, 1 CA-JV 19-0081, 2019 WL 5258095, at *2, ¶ 11 (Ariz. App. Oct. 17, 2019) (mem. decision) (exercising special action decision without deciding if good-cause ruling was a final appealable order).
¶8 Shawn argues the superior court abused its discretion by denying his request to intervene. This court reviews de novo whether a movant established a right to intervene, but reviews orders denying permissive intervention for an abuse of discretion. See Dowling v. Stapley, 221 Ariz. 251, 269-70, ¶ 57 (App. 2009). A superior court abuses its discretion when its decision is "manifestly unreasonable, exercised on untenable grounds or for untenable reasons." Williams v. Williams, 166 Ariz. 260, 265 (App. 1990).
¶9 A person seeking to intervene in a dependency action must meet the requirements of Arizona Rule of Civil Procedure 24 for either
intervention by right or permissive intervention. See Roberto F. v. Ariz. Dep't of Econ. Sec., 232 Ariz. 45, 50, ¶ 20 (App. 2013) ("Intervention as of right is governed by Rule 24(a), whereas permissive intervention is governed by Rule 24(b)."). As for whom may intervene by right,
the court must permit anyone to intervene who:
(1) has an unconditional right to intervene under a statute; or
(2) claims an interest relating to the subject of the action, and is so situated that disposing of the action in the person's absence may as a practical matter impair or impede the person's ability to protect that interest, unless existing parties adequately represent that interest.
Ariz. R. Civ. P. 24(a). For permissive intervention, "the 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." Ariz. R. Civ. P. 24(b)(1).
¶10 If the superior court finds the motion satisfies Rule 24(b), the court may also consider several factors, including:
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.
Bechtel v. Rose, 150 Ariz. 68, 72 (1986) (quotation omitted). When a motion to intervene is filed in a dependency, "the juvenile court should consider and weigh the relevant factors . . . and only if they show that intervention would not be in the best interest of the child should intervention be denied." Id. at 74.
¶11 Shawn first argues the superior court erred in not allowing him to intervene by right because he has "statutory placement priority"
under A.R.S. § 8-514.B, which establishes preferential placements for children in foster care. He also argues he "has an interest in the placement of his psychological children."
¶12 Though Shawn suggests he is the children's psychological parent, a personal interest in becoming a child's placement does not create a statutory right. See Egan v. Fridlund-Horne, 221 Ariz. 229, 237, ¶ 28 (App. 2009) ("Arizona has not adopted the de facto parent doctrine or any similar common law doctrine."). As the superior court found, "[t]hough [Shawn] calls himself stepfather to the children, he, in fact, is not." Rather, he "is the former domestic partner of the children's biological mother." Although Shawn cared for the children for a significant portion of their lives, particularly A.T., he obtained no custodial rights. Additionally, subsection 8-514.B confers no rights upon Shawn, but rather "expresses a legislative intent to protect 'the needs of the child,' not the identified placements." See Lorenz v. State, 238 Ariz. 556, 558, ¶ 15 (App. 2015) (quoting A.R.S. § 8-514.B). As this court has noted, "the order of placement [in subsection 8-514.B] is a preference, not a mandate." See Jewel C. v. Dep't of Child Safety, 244 Ariz. 347, 350, ¶ 5 (App. 2018) (quotation omitted). Without a statutory or other legal right to the children, Shawn has not shown the superior court erred by denying his motion to intervene by right. See Ariz. R. Civ. P. 24(a).
¶13 Likewise, Shawn has failed to identify a statute that grants him a conditional right to intervene. See Ariz. R. Civ. P. 24(b)(1)(A). For permissive intervention, therefore, he must demonstrate he has a claim or defense that shares a common question of law or fact with the main action. See Ariz. R. Civ. P. 24(b)(1)(B). Shawn asserts his desire "to have primary position as placement and permanent option for the children" coincides with the "central issues in the 'main action,'" namely "[l]ong-term legal custody of the children, and their best interests." Again, however, Shawn's assertions reflect his desire to be the children's placement and do not present a viable legal claim to the children. See, e.g., Egan, 221 Ariz. at 237, ¶ 28.
¶14 The superior court's order reflects a consideration of the nature and extent of Shawn's interest, his standing to raise relevant legal issues, and the legal position he sought to advance. The superior court considered Shawn's relationship with the children, including how long each resided with him, but also recognized Shawn was merely the mother's former domestic partner with no legal interest in, or claim to, the children. Accordingly, he has no legal position to advance. Denying Shawn's intervention does not prevent DCS or the superior court from considering him as a placement for the children. See A.R.S. §§ 8-514, -514.02.
¶15 As the superior court found, if Shawn did have a legal relationship with the children, he likely would have had to respond to allegations of abuse and neglect, given issues in the record linking him to possession and use of methamphetamine while the children lived with him. In response, Shawn argues the superior court abused its discretion by "indicat[ing] in its ruling that if [Shawn] had a legal relationship with the children, he would almost certainly find himself a charged party in this case." Ultimately, "the best interest of the child shall govern." Bechtel, 150 Ariz. at 73. Indeed, Rule 24(b) "mandates that '[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.'" Maricopa Cnty. Juv. Action No. JS-7135, 155 Ariz. 472, 476 (App. 1987) (quoting Ariz. R. Civ. P. 24(b)(3)). The superior court, therefore, must exercise its discretion "in a manner which will preserve and further the best interests of the child." Id. The superior court's finding suggests a focus on the potential neglect the children experienced while in Shawn's care—a valid consideration for the children's best interests.
¶16 Shawn also argues the superior court abused its discretion by finding the children had been removed from his care twice. Indeed, the evidence shows the children were removed from Shawn's care only once. This mistake, however, does not undermine the reasonable evidence supporting the superior court's order. See State v. Morris, 215 Ariz. 324, 335, ¶ 44 (2007) (errors not effecting the outcome are harmless) (quotation omitted); Monica C. v. ADES, 211 Ariz. 89, 94, ¶ 22 (App. 2005) (harmless error applies in juvenile proceedings).
¶17 We accept jurisdiction of Shawn's appeal as a petition for special action, but we deny his quested relief.