Arlene L. v. Dcs ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ARLENE L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 M.L., Z.V., I.V., Appellees.
No. 1 CA-JV 14-0118
FILED 11-04-2014
Appeal from the Superior Court in Maricopa County
Nos. JD23186 & JS17137
The Honorable Linda H. Miles Judge
DISMISSED AS MOOT
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014)
(enacted), the Department of Child Safety (DCS) is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
Joseph C. Shanahan, Scottsdale
By Law Office of Joseph Ramiro-Shanahan PLLC
Guardian Ad Litem for Children
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
J O N E S, Judge:
¶1 Arlene L. (Mother) is the biological mother of M.L., Z.V., and
I.V. (collectively, the Children). Following the Children being found
dependent and placed in the State’s care, DCS sought to update their
routine vaccinations. Mother objected to the vaccinations on religious and
personal grounds. Following an evidentiary hearing, the trial court found
the existence of a compelling state interest sufficient to override Mother’s
religious objection, and granted DCS authority to vaccinate the children.
Mother appealed. Because we conclude this appeal has been mooted by the
severance of Mother’s parental rights, we dismiss her appeal.
FACTS AND PROCEDURAL HISTORY
¶2 In mid-2013, the Children were found dependent as to
Mother.2 As a result, the trial court awarded legal care, custody, and control
of the Children to DCS, and affirmed a case plan of family reunification,
with a concurrent plan of severance and adoption.
¶3 In December 2013, DCS moved the court to authorize the
administration of routine vaccinations to the Children over Mother’s
religious objection. The trial court held an evidentiary hearing on the
limited issue of whether DCS could immunize the dependent children. At
the hearing, Mother testified as to the religious and personal beliefs she
asserted formed the basis of her objection, and DCS presented testimony
about the Children’s medical and behavioral issues, as well as expert
testimony regarding the risks associated with the Children remaining
unimmunized. Following the hearing, in April 2014, the trial court found
2The Children were also found dependent as to their biological father.
Prior to the events forming the basis of this appeal, the Children’s father
passed away.
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ARLENE L. v. DCS, et al.
Decision of the Court
the evidence presented demonstrated the existence of a compelling state
interest sufficient to overcome Mother’s religious objection, and granted
DCS authorization to vaccinate the Children. Mother timely brought this
appeal, challenging the sufficiency of the evidence supporting the trial
court’s finding.
¶4 DCS respectfully agreed to delay inoculating the Children
until the appellate process had completed, but the appeal did not halt or
suspend the underlying dependency action. In June 2014, the trial court
granted DCS’s motion to change the case plan from family reunification to
severance and adoption, and DCS then moved to terminate Mother’s
parental rights to the Children. In August 2014, after conducting a
severance hearing, the court terminated Mother’s parental rights in an
unsigned minute entry. In September 2014, the court entered a signed
minute entry, which made the termination of Mother’s parental rights final.
DISCUSSION
I. Mootness
¶5 As a threshold matter, we must determine whether Mother’s
appeal was mooted by the subsequent termination of her parental rights.
We find that it was.
¶6 It is well established that Arizona courts “will refrain from
considering moot or abstract questions.” Fraternal Order of Police v. Phx.
Emp. Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982) (citations
omitted); Contempo-Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz.
227, 229, 696 P.2d 1376, 1378 (App. 1985). Although Arizona courts are not
constitutionally limited to consider only “cases and controversies,” “we
typically decline to consider moot . . . questions as a matter of judicial
restraint.” Kondaur Capital Corp. v. Pinal Cnty., 235 Ariz. 189, 192-93, ¶ 8,
330 P.3d 379, 382-83 (App. 2014) (citing Lana A. v. Woodburn, 211 Ariz. 62,
65, ¶ 9, 116 P.3d 1222, 1225 (App. 2005)). “A case becomes moot when an
event occurs which would cause the outcome of the appeal to have no
practical effect on the parties.” Sedona Private Prop. Owners Ass’n v. City of
Sedona, 192 Ariz. 126, 127, ¶ 5, 961 P.2d 1074, 1075 (App. 1998) (citing
Sandblom v. Corbin, 125 Ariz. 178, 182, 608 P.2d 317, 321 (App. 1980)); see also
Contempo-Tempe, 144 Ariz. at 229, 696 P.2d at 1378 (noting a question
becomes moot through “a change in a condition of affairs”) (citations
omitted).
¶7 The thrust of Mother’s appeal is the interplay between the
residual rights retained by a parent during the dependency of a child and
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ARLENE L. v. DCS, et al.
Decision of the Court
the statutory duties imposed upon DCS to care for the health and well-
being of a dependent child in its custody. When DCS assumes legal custody
and care of a dependent child, it assumes “[t]he responsibility to provide
the child with adequate food, clothing, shelter, education and medical care,
. . . subject to the residual parental rights and responsibilities if they have not been
terminated by judicial decree.” Ariz. Rev. Stat. (A.R.S.) § 8-531(5)3 (emphasis
added). Moreover, when a dependent child is placed in foster care, as the
Children were, DCS must also provide the child with “comprehensive
medical and dental care,” A.R.S. § 8-512(A)(1), which “may include [a]
program of regular health exams and immunizations.” A.R.S. § 8-512(C)(1)
(emphasis added).
¶8 DCS’s obligation to provide medical care to dependent
children is not absolute, as it is “subject to the residual parental rights . . .
[that] have not been terminated by judicial decree.” A.R.S. § 8-531(5).
Encompassed within a parent’s residual parental rights is her right to direct
the religious upbringing of her child. Diana H. v. Rubin, 217 Ariz. 131, 135,
¶ 17, 171 P.3d 200, 204 (App. 2007).
¶9 A severance order “divest[s] the parent and the child of all
legal rights, privileges, duties and obligations with respect to each other
except the right of the child to inherit and support from the parent.” A.R.S.
§ 8-539. Such an order is effective on the date of entry, and is not stayed
during the pendency of any appeal therefrom. A.R.S. § 8-235(B).4
Accordingly, upon entry of the court’s severance order, all of Mother’s legal
rights with respect to the Children were terminated. This includes her right
to direct the religious upbringing of the Children and, consequently, her
ability to object to the Children receiving vaccinations. Diana H., 217 Ariz.
at 138 n.6, ¶ 32, 171 P.3d at 207 n.6 (“Obviously some dependencies do
culminate in the permanent termination of the parent-child relationship, an
event that extinguishes any remaining parental rights [held during the
dependency]. See A.R.S. § 8-539. In those cases, nothing prevents the state
from arranging to have the child immunized after the parent’s rights have
been severed.”).
3 Absent material revisions from the relevant date, we cite to the current
version of a statute or regulation unless otherwise indicated.
4 A trial court’s order may be suspended or stayed by an appellate court
during an appeal “if suitable provision is made for the care and custody of
the juvenile.” A.R.S. § 8-235(B). No such stay was issued here.
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¶10 Although we may “elect to consider issues that have become
moot if there is either an issue of great public importance or an issue capable
of repetition yet evading review,” Kondaur Capital Corp., 235 Ariz. at 193,
¶ 8, 330 P.3d at 383 (quoting Bank of N.Y. Mellon v. De Meo, 227 Ariz. 192,
194, ¶ 8, 254 P.3d 1138, 1140 (App. 2012)) (internal quotations omitted), we
find neither of these exceptions applicable here.
¶11 The exception for matters of “great public importance”
typically applies when the matter “will have broad public impact beyond
resolution of the specific case.” Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 6, 277
P.3d 811, 814 (App. 2012) (citing Bank of N.Y. Mellon, 227 Ariz. at 194, ¶ 8,
254 P.3d at 1140). The exception is usually inapplicable “where an
appellant’s argument is grounded on events that occurred in the specific
case.” Kondaur Capital Corp., 235 Ariz. at 193, ¶ 10, 330 P.3d at 383 (citing
Cardoso, 230 Ariz. at 617, ¶ 6, 277 P.3d at 814). Here, the trial court was
tasked with determining whether DCS had proven a compelling interest
sufficient to overcome Mother’s religious objection. As “each case [in this
context] must by necessity be decided on its own facts,” Cochise Cnty. No.
5666-J, 133 Ariz. 157, 164, 650 P.2d 459, 466 (1982) (citing In re Karwath, 199
N.W.2d 147, 150 (Iowa 1972)), this exception is inapplicable.
¶12 The exception for matters “capable of repetition yet evading
review,” typically applies when “an issue that is capable of recurring cannot
be decided by the appellate court” because of time constraints. Cardoso, 230
Ariz. at 617, ¶ 7, 277 P.3d at 814 (citing KPNX Broad. v. Superior Court, 139
Ariz. 246, 250, 678 P.2d 431, 435 (1984), and Ariz. Dep’t of Econ. Sec. v.
Superior Court, 171 Ariz. 688, 690, 832 P.2d 705, 707 (App. 1992)). Here,
although the issue may be capable of repetition, it does not necessarily
evade review. In this case, Mother elected to take a regular appeal from the
trial court’s order authorizing the immunizations. Even though juvenile
appeals receive precedence over most other appeals, Mother would have
most likely expedited the process had she instead filed a special action
petition. A.R.S. § 8-235(C) (granting juvenile appeals “precedence over all
other actions except extraordinary writs or special actions”); see Diana H.,
217 Ariz. at 132, ¶ 1, 171 P.3d at 201 (accepting special action jurisdiction
where trial court granted state agency authority to consent to dependent
child’s immunizations over a mother’s religious objection). Had Mother
sought special action review, it is likely her case would have been decided
prior to the termination of her parental rights, which occurred nearly five
months following the trial court’s order authorizing the vaccinations.
Therefore, we conclude this exception is inapplicable as well.
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CONCLUSION
¶13 As Mother’s parental rights to the Children have been
severed, she no longer possesses the right to object to their inoculation.
Accordingly, a decision in this case would have no impact on these parties.
Therefore, we dismiss her appeal as moot.
:gsh
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