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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
HEATHER A., JARED M., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, S.M., H.M., Appellees.
No. 1 CA-JV 21-0315
FILED 3-31-2022
Appeal from the Superior Court in Maricopa County
No. JD31153
The Honorable Lori Bustamante, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones LLC, Mesa
By H. Clark Jones
Counsel for Appellant
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellees
HEATHER A., JARED M. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.
G A S S, Vice Chief Judge:
¶1 Mother and father appeal the superior court’s order
terminating their rights to their respective children. The parents do not
dispute whether the Department of Child Safety (DCS) proved the statutory
grounds for termination or the superior court’s finding they were unfit.
Instead, they challenge the guardian ad litem’s (GAL’s) absence from the
hearing. They argue the hearing violated the children’s due process rights
because the children were “unrepresented” during the termination hearing.
Because the parents lack standing to raise this issue, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Just after the parents’ child (H.M.) was born, DCS petitioned
for a dependency based on parents’ substance abuse, which the superior
court granted. DCS implemented a safety plan, and the superior court
appointed a GAL to represent the children’s best interests. During the
thirty-five-month dependency, the GAL attended all but three court
hearings.
¶3 DCS provided services to both parents. Throughout the
dependency, mother continued to abuse either methamphetamine or
heroin. Both parents participated inconsistently in services. Four months
into the dependency, father violated probation and was imprisoned on a
2011 offense. He remained incarcerated for the next twenty-one months.
Upon his release, father minimally engaged in services and did not enhance
his parenting capacities.
¶4 Twenty-nine months after petitioning for a dependency, DCS
moved to terminate the parents’ parental rights under the chronic
substance-abuse and fifteen-month out-of-home placement grounds. See
A.R.S. § 8-533.B.3, .B.8.c. The superior court terminated mother and father’s
rights to H.M. The court also terminated mother’s rights to an older child,
S.M. Because the parents raise a purely legal issue, we need not review the
facts underlying the termination, and instead here focus on the facts
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HEATHER A., JARED M. v. DCS et al.
Decision of the Court
impacting their legal argument and discuss other underlying facts in
paragraphs 14 through 18 below.
¶5 The GAL was not present when the termination hearing
commenced on September 27, 2021. After delaying the start of the hearing
for a few minutes, the superior court said it was “inclined to at least start
without [the GAL] and see how far we can get.” Neither mother nor father
objected to proceeding in the GAL’s absence.
¶6 The GAL still had not appeared by the time the hearing
closed. The superior court expressed its concern and asked the parties for
“any suggestions on how to proceed.” Father’s counsel suggested the
minute entry could require the GAL “file something in writing to the Court
with his position and it could be due by a date-certain, and then the Court
could consider that in making [its] decision.” Mother’s counsel said, “other
courtrooms regularly waive [GALs] in this proceeding, so I don’t have any
objection to doing something of that nature.” The court then directed the
GAL to submit his position and took the matter under advisement.
¶7 The GAL submitted his written position in favor of
termination, and a week later, the superior court terminated the parents’
rights on the grounds alleged. The parents appealed. This court has
jurisdiction under article VI, section 9, of the Arizona Constitution, and
A.R.S. §§ 8-235.A, 12-120.21.A.1, and 12-2101.A.1.
ANALYSIS
¶8 This court reviews “the interpretation of statutes, court rules,
and constitutional issues” de novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz.
437, 442, ¶ 15 (2018). This court views the evidence and reasonable
inferences to be drawn from it in the light most favorable to affirming the
superior court’s order and will not reverse unless no reasonable evidence
supports the factual findings. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz.
547, 549, ¶ 7 (App. 2010).
¶9 “To possess standing to assert a constitutional challenge, an
individual must . . . have suffered some threatened or actual injury resulting
from the putatively illegal action.” State v. B Bar Enters., Inc., 133 Ariz. 99,
101 n.2 (1982) (cleaned up). “[A] party may have standing to protect a
constitutional right possessed solely by a third person and not by the party”
if the party has “a substantial relationship to the third person, the third
person [is] unable to assert the constitutional right on his or her own behalf,
and the failure to grant the party standing [would] result in a dilution of
the third person’s constitutional rights.” Id. As biological parents, father
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HEATHER A., JARED M. v. DCS et al.
Decision of the Court
and mother have a substantial relationship with their respective children.
The children, however, are parties to this appeal. They are represented by
counsel who can assert their constitutional rights and who did not do so
here. Accordingly, the exception to the third-party-standing rule does not
apply.
¶10 Further, the superior court did not err in proceeding with the
termination hearing without the GAL’s presence. In a termination
proceeding, a GAL is appointed to “protect the interest of [a] child” and
“may make decisions in the child’s best interests irrespective of the child’s
expressed wishes.” Castro v. Hochuli, 236 Ariz. 587, 591–92, ¶ 11 (App. 2015);
Ariz. R.P. Juv. Ct. 40.A. A child’s counsel, on the other hand, is appointed
mainly to “advocate for [the child’s] subjective goals in the litigation.” See
Castro, 236 Ariz. at 591, ¶ 8.
¶11 On the date of the termination hearing, the law required the
superior court to appoint a GAL only when a child was subject to
dependency proceedings involving abuse or neglect allegations. See A.R.S.
§ 8-221.A, .I (2010) (amended 2021). The legislature later amended that
statute to require an appointed attorney for a child subject to any
dependency or termination proceeding. A.R.S. § 8-221.A. But at the time of
the trial, the children were not entitled to an attorney because the
amendment did not take effect until after the termination hearing
concluded.
¶12 We do note the unusual timing of the GAL’s involvement. The
GAL, who did not appear at the termination hearing, now represents the
children as their attorney in this appeal. The change in his role is the result
of an administrative order issued two days after the termination hearing in
this case. See Maricopa Cnty. Super. Ct. Admin. Order No. 2021-140; see also
2021 Ariz. Legis. Serv. ch. 228, § 1 (S.B. 1391) (West). In that order, the
Maricopa County Superior Court converted all GALs to appointed
attorneys to comply with the amendment to § 8-221.A mandating all
children in dependency proceedings be represented by an attorney. See id.
We also note the children’s attorney filed no brief in this appeal. And when
he filed a position statement with the superior court regarding termination,
he indicated he was filing as the GAL, but also indicated he was “attorney
for minor.”
¶13 Nevertheless, the parents assert the GAL acted improperly by
submitting a position without attending the hearing. The parents, however,
invited the error by suggesting the superior court proceed as it did. See State
v. Herrera, 232 Ariz. 536, 544, ¶ 16 (App. 2013) (this court “will not find
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HEATHER A., JARED M. v. DCS et al.
Decision of the Court
reversible error when the party complaining of it invited the error” (citation
omitted)). Father’s counsel suggested the GAL should “file something in
writing to the court with his position,” and mother’s counsel did not object
to waiving the GAL’s presence.
¶14 As a final point, the parents have not demonstrated any
resulting harm from the alleged violation. See Monica C. v. Ariz. Dep’t of
Econ. Sec., 211 Ariz. 89, 93–94, ¶¶ 21–22, 24–25 (App. 2005). DCS presented
an extensive record for the superior court to review, including twenty-four
exhibits and testimony. Many of those exhibits included updates about the
children. Further, the case manager testified about the children’s subjective
positions, saying ten-year-old S.M. was “so done with this whole DCS
thing” and wanted to live with S.M.’s aunt and “be done with it all.”
¶15 Three-year-old H.M. was just beginning to express wants and
needs. Because of father’s inconsistency at visits, H.M. became very
frustrated, and “it became really difficult to get [H.M.] to even go on a visit.”
Soon afterward, H.M. refused to go on a visit because the child “was just
really determined [to not] go and kind of had a meltdown in the parking
lot of [the] daycare.” The parent aide had to call H.M.’s placement to pick
the child up because H.M. would “not get[ ] in the parent aide’s vehicle that
day.”
¶16 The superior court considered this evidence, along with
evidence of the parents’ extensive history of substance abuse, failure to
engage in substance-abuse treatment or establish sobriety, and failure to
enhance their caregiving capacities or provide the children with a safe and
stable home.
¶17 The GAL, in turn, recommended termination “based upon
[his] familiarity with the parents[‘] participation with services . . . up to the
trial date.” The GAL’s position was well-informed as he had represented
the children throughout the dependency and was familiar with the
evidence presented at trial.
¶18 Based on these facts, the superior court found maintaining the
parent-child relationship would be detrimental to the children. Conversely,
the superior court found the children would benefit from termination
because they will continue to have “their needs met in a safe and stable
environment” and “will be able to move forward toward permanency.”
Ultimately, the GAL’s recommendation—filed after the termination
hearing—aligned with the overwhelming evidence showing termination
was in the children’s best interests. The record does not show how the GAL
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HEATHER A., JARED M. v. DCS et al.
Decision of the Court
failed to protect the children’s interests or how his absence from the
termination hearing harmed the children or diluted their constitutional
rights. See Ariz. R.P. Juv. Ct. 40.A.
¶19 Though the parents argue the GAL should have advocated for
the children’s subjective position rather than their best interests, the parents
again invited the alleged error. Father’s counsel recommended, without
objection, the GAL submit his position in writing, and the superior court
ordered the GAL to do so. Although the due date for the GAL’s filing fell a
week after the amendment to § 8-221.A became effective, the parents did
not request a change to the superior court’s order. Further, the parents fail
to show the children’s subjective positions would have differed
substantively from the position the GAL filed with the court.
¶20 On this record, the parents have not shown standing, error, or
resulting prejudice.
CONCLUSION
¶21 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6