Allen v. Chon-Lopez

ESPINOSA, Judge,

dissenting.

¶ 17 I refrain from joining the majority decision because, as the majority acknowledges, our standard of review is abuse of discretion, Mitchell, 83 Aiz. 328, 333, 320 P.2d 955, 958, and there is ample justification supporting the respondent judge’s decision to deny Alen’s motion to intervene in this dependency proceeding. In my view, the majority erroneously assumes the respondent ignored relevant factors and then substitutes its own judgment to conclude the juvenile court abused its discretion, something beyond our proper purview. Therefore, I respectfully dissent.

¶ 18 The courts in Bechtel and William Z., cited by the majority, found abuses of discretion in the denial of intervention, but only when the trial courts had summarily denied the motions without addressing relevant factors. When reviewing a juvenile court’s discretionary decisions, we will uphold its rulings if there is evidence to support them. See Leslie C. v. Maricopa County Juvenile Court, 193 Ariz. 134, 135, 971 P.2d 181, 182 (App.1997). And appellate courts will infer a trial court has made any findings supportable by the record that are necessary to sustain its judgment. See Elliott v. Elliott, 165 Aiz. 128, 135, 796 P.2d 930, 937 (App.1990). “We do not re-weigh the evidence on review.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App.2002).

¶ 19 At the outset, it is not clear, contrary to the majority’s conclusion, that Alen “is eligible to be awarded permanent custody.” Athough the majority refers to Alen as T.’s “maternal aunt,” the relationship exists only through Alen’s marriage to T.’s maternal uncle. The record reflects Alen claims to have begun the process of dissolving that marriage, and when that is complete, Allen will no longer have a legal relationship to T., and obviously has no blood relationship to him. Even absent the dissolution proceedings, it is unclear whether a relative only by marriage even falls within the holding of Bechtel. See William Z. v. Ariz. Dep’t of Econ. Sec., 192 Ariz. 385, 388 n. 6, 965 P.2d 1224, 1227 n. 6 (App.1998) (‘We proceed with *367our analysis on the assumption that William’s status as grandparent brings us within the holding of Bechtel, and express no opinion as to whether Caryle should be treated differently from a blood relative.”). Bechtel, Arizona Department of Economic Security, 173 Ariz. at 27, 839 P.2d at 447, and In re Maricopa County Juvenile Action No. JS-7135, 155 Ariz. 472, 476, 747 P.2d 633, 637 (App.1987), all involved blood relatives who sought intervention in various custody proceedings. As the Bechtel court stated: “It has been repeatedly emphasized that ‘courts should bend over backwards, if possible, to maintain the natural ties of birth.’ ” 150 Ariz. at 73, 722 P.2d at 241, quoting Anonymous v. Anonymous, 25 Ariz.App. 10, 11, 540 P.2d 741, 742 (1975).

¶20 Second, while the majority seems to focus on “assisting [Allen] in obtaining justice and protecting [her] rights,” as a non-parent, and in the foreseeable future, a non-relative, Allen has little, if any, legal interest to be protected in this case. Allen could adopt T. without being a party in the dependency case, which, indeed, is the most common avenue for adoptive parents. The majority’s decision suggests any long-term foster parent or temporary custodian who has a child removed from their care should, and under its reasoning, would be permitted to intervene in the dependency case. Cf. Bechtel, 150 Ariz. at 74, 722 P.2d at 242 (“However, we do not hold that mere eligibility for consideration [as guardians] automatically confers a right to intervene in dependency proceedings.”). Thus, the first two Bechtel factors clearly support the respondent judge’s ruling and it should not be assumed he failed to consider them. See Elliott; see also Fuentes v. Fuentes, 209 Ariz. 51, ¶ 18, 97 P.3d 876, 880-81 (App.2004) (appellate court presumes trial court considered all evidence in reaching its decision).

¶ 21 The undue delay factor noted in Bechtel was expressly considered by the respondent when he specifically found: “[T.] will derive no affirmative benefit if this Court allows Ms. Allen to intervene at this late date.” For the majority to disregard the added delay that Allen’s intervention would likely inject into the case ignores the sweeping changes in the dependency statutes since Bechtel and the other cited cases were decided, implementing the “Model Court” program and creating a statutory mandate that the juvenile court hold a permanency hearing “within twelve months after the child is removed” and determine “the most appropriate plan for the child and shall order the plan to be accomplished within a specified period of time.” A.R.S. § 8-862(A)(2); (B)(1). It is difficult to see the logic in allowing Allen to intervene and delay the proceedings for the purpose of seeking custody of a child recently removed from her care by Child Protective Services, which required probable cause to show T. was “a victim or [would] imminently become a victim of abuse or neglect,” or “suffering serious physical or emotional injury that can only be diagnosed by a medical doctor or psychologist.” A.R.S. § 8-821(B)(1) and (2). Courts “must be mindful [when] dealing with the care and custody of a very young child and vigilant to protect his right to a suitable and speedy placement.” Bechtel, 150 Ariz. at 71, 722 P.2d at 239. In intervention cases, the juvenile court must “exercise its discretion in a manner which will preserve and further the best interest of the child, avoiding delay and prejudice to the child at all costs.” Maricopa County No. JS-7135, 155 Ariz. at 476, 747 P.2d at 637.

¶ 22 Most problematic, however, is the majority’s glossing over the respondent judge’s concerns for the child and the ample basis for that concern, both factual and legal. The majority criticizes the respondent for focusing on the “eventual outcome” for T., rather than “the effect of intervention on the proceedings.” But, in my view, the respondent got it exactly right. Not only is “ ‘the legal position [the intervenor] seek[s] to advance and its probable relation to the merits of the case’” another express Bechtel factor, 150 Ariz. at 72, 722 P.2d at 240 (emphasis added), quoting Spangler, 552 F.2d at 1329, but the overarching rule guiding a court’s judgment is that “the best interest of the child shall govern.” Bechtel, 150 Ariz. at 73, 722 P.2d at 241; see also William Z., 192 Ariz. 385, ¶ 14, 965 P.2d at 1227 (“We focus on the welfare of the children, giving only secondary consideration to the remaining interested parties.”).

*368¶23 If the child’s welfare is the point of the proceeding, Allen’s intervention is, at best, questionable. After T. had been removed from the dangerous environment in which Allen had left him, CPS, at the respondent’s request, investigated the possibility of returning T. to Allen’s custody and concluded that doing so was not appropriate. There is ample evidence to support that conclusion, including Allen’s “emotional meltdown” requiring hospitalization, relapse into cocaine abuse, alcohol abuse, long-term and ongoing marital difficulties, and the domestic violence and drug abuse T. was exposed to under Allen’s care. Equally troubling is Allen’s assertion the adoption was never completed due to concerns about “pass[ing] the adoption study.” Because Allen worked in the Adoptions unit of the County Attorney’s office, the respondent judge could expect her to have a realistic view of the circumstances that likely would result in rejection of a petition to adopt. All of this information was before the respondent and he could reasonably find Allen now merely seeks a “do-over” to return her to the custodial position she had abdicated through the combination of her inaction, irresponsible behavior, and dangerous neglect of T., regardless of applicable time constraints and the needs of the child.

¶ 24 The respondent judge expressly found “allowing Grace Allen to intervene would be adverse to [T.’s] best interest.” This finding is key in his denial of Allen’s motion and is supported by ample evidence, demonstrating the respondent properly exercised his discretion, notwithstanding that this court might reach a different conclusion under its own view of the facts of this case. Jesus M., 203 Ariz. 278, ¶ 12, 53 P.3d at 207. I would therefore decline jurisdiction of the special action.