Bella P. v. Dcs ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BELLA P.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Y.D.,
Y.D.,
Appellees
__________________________________
No. 1 CA-JV 16-0141
FILED 9-15-2016
Appeal from the Superior Court in Maricopa County
No. JD 510937
The Honorable Timothy Ryan, Judge
AFFIRMED
COUNSEL
Jeffrey M. Zurbriggen, P.C., Phoenix
By Jeffrey M. Zurbriggen
Counsel for Petitioner/Appellant
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Samuel A. Thumma and Judge Margaret H. Downie joined.
T H O M P S O N, Judge:
¶1 Bella P. (grandmother) appeals from the juvenile court’s
denial of her motion to intervene and her request to change physical
custody of her two dependent grandchildren. Because grandmother has
not shown the juvenile court abused its discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Grandmother is the maternal grandmother of two young
children adjudicated dependent after one of the children was discovered to
have had multiple fractures of the legs which occurred during a seven to
ten-day period. Parents denied the abuse and variously asserted the child’s
injuries must have been caused by others, including hospital personnel and
the rabbi who performed the child’s bris. They also alleged that various
family members had been present in their home. The children’s biological
parents’ parental rights were terminated in 2014 and that determination
was affirmed on appeal in Rosabelle P. v. DCS, 2015 WL4455913.
¶3 Between 2013-2015, the children lived in multiple family
placements, including with their maternal grandfather, the former husband
of appellant grandmother. The children were removed from maternal
grandfather’s care after grandfather allowed continued contact with the
biological parents after the severance. He stated the children “should be”
with their mother.
¶4 In August 2015, the Department of Child Safety (DCS) began
the process to transfer the children’s physical custody to grandmother.
Grandmother had, just two weeks before, come from her home state of New
York in order to adopt these children. Grandmother passed her home
study. At that time, grandmother denied any prior contact with child
protective services.
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IN RE: BELLA P.
Decision of the Court
¶5 The children’s guardian ad litem (GAL) objected to the
placement with grandmother. One objection was the home study was not
done on grandmother’s actual residence, as she was only in Arizona
temporarily. The objection noted grandmother was staying in an
apartment where several family members, including maternal grandfather
and the biological parents, had previously lived. The GAL attached a copy
of the DCS “Assessment for Kinship Foster Care” which included
statements by grandmother that she did not believe the parents abused the
children, but rather that the injuries had occurred during the child’s bris.
Grandmother stated that her daughter was a “loving” mother and that DCS
should not have removed the children from her care. The court was further
reminded that several family member placements had not worked out,
including placement with the maternal grandfather. The GAL advised the
court that the children were currently in a prospective adoptive home and
had bonded to that family.
¶6 Before the transfer occurred, it came to DCS’s attention that
grandmother had two prior substantiated interactions with the New York
child protective services which she had failed to disclose. DCS successfully
moved to stay the transfer. Grandmother filed a letter with the court
admitting, and attempting to explain, her two prior contacts with New York
child protective services.
¶7 Two weeks later, grandmother appeared at a scheduled
placement report and review hearing. The court voiced concerns about the
situation with the children being discussed on the internet and that there
was a potential crowdfunding effort related to legal fees. Grandmother
denied “gossip” that she allowed their mother interact with the children.
Grandmother was apparently escorted from the courtroom by deputies. At
the hearing it became clear the placement family believed that their physical
safety was at risk. The juvenile court advised the placement to obtain
orders of protection against several of the children’s biological family
members.
¶8 Next, grandmother filed the instant motion to intervene and
a request to change physical custody. She voiced concerns about the
children’s current placement and, in her motion, provided the court with a
criminal background search that had been done on one of the placements,
included copies of Facebook pages, and had photos of the placement letting
a child ride in the front seat while dropping the child at school.
¶9 Oral argument was held solely on the motion to intervene.
The request for change in physical custody was tabled until after the court
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IN RE: BELLA P.
Decision of the Court
determined if intervention was appropriate. The court stated that if
intervention were allowed, an evidentiary hearing would be held on the
issue of physical custody. Grandmother did not object.
¶10 At oral argument, DCS advised the court that the
Department’s record search indicated that the biological parents mailing
address was still the same as the physical address listed for grandmother.
DCS objected to grandmother’s private investigator conducting searches on
the placement and standing in or around the placement’s yard to take
pictures. The GAL advised the court of a report from the preschool that
grandmother had caused a disturbance, apparently when asked for
identification, that nearly required the police being called.
¶11 After taking the matter under advisement, and after review of
the record, the juvenile court denied grandmother’s motion to intervene
and for change in physical custody. This timely appeal followed.
DISCUSSION
¶12 Grandmother sought permission to intervene pursuant to
Arizona Rule of Civil Procedure 24(b).1 That rule reads:
Upon timely application anyone may be permitted to
intervene in an action:
1. When a statute confers a conditional right to intervene.
2. When an applicant's claim or defense and the main action
have a question of law or fact in common.
In exercising its discretion the court shall consider whether
the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
“Grandparents are among those people eligible to become guardian of a
child found to be dependent” and, as such, a child's grandparents “should
be allowed to intervene in the dependency process unless a specific
showing is made that the best interest of the child would not be served
thereby.” Bechtel v. Rose, 150 Ariz. at 73, 722 P.2d at 241; see A.R.S. § 8-
1Although grandmother quoted Arizona Rule of Civil Procedure 24(a) in
her motion and brief on appeal, she does not assert intervention of right
under that rule (as opposed to claiming permissive intervention under Rule
26(b)).
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IN RE: BELLA P.
Decision of the Court
514(B) (2014). We review the juvenile court's denial of grandmother’s
motion to intervene for an abuse of discretion. See Allen v. Chon-Lopez, 214
Ariz. 361, 364, 153 P.3d 382, 385 (App. 2007) (citing Bechtel v. Rose, 150 Ariz.
68, 72, 722 P.2d 236, 240 (1986)).
¶13 On appeal, grandmother argues that she met all the legally
required Bechtel factors for intervention and, citing Chon-Lopez, that she
should have been allowed to intervene even if the juvenile court did not
expect to eventually award her custody. Bechtel outlined several relevant
factors which the court should consider prior to determining whether a
grandparent should be allowed to intervene in a dependency matter. See
Bechtel, 150 Ariz. at 71, 722 P.2d at 239 (citing Spangler v. Pasadena City Bd.
Of Educ., 552 F.2d 1326, 1329 (9th Cir. 1974) (outlining factors generally
relevant to permissive intervention)).2
¶14 The court here did find that grandmother met the threshold
standard of Rule 24(b)(1), because there was a conditional right to intervene
as a family member. However, after consideration of the facts in the case,
2 Those factors are:
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.
To this end, grandmother asserts that, as she currently has no standing, her
intervention would contribute to the full development of the underlying
factual issues and that no other party will provide adequate representation
of her position related to the stability, consistency, adoption and love for
her grandchildren. She states that her intervention would actually shorten
the litigation because she “will strongly pursue placement and adoption
immediately.”
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IN RE: BELLA P.
Decision of the Court
the court explicitly found grandmother’s intervention was not in the
children’s best interests. The court stated grandmother
has consistently acted in a way that places in serious doubt
her ability to: a) work honestly with the professionals
involved in protecting the minor children’s best interests, b)
consider the best interests of the children as paramount to the
wishes and whims of the extended biological family, and c)
protect the children from the biological parents, whose rights
have been terminated.
The court concluded “[i]ntervention would cause extensive delay and
detrimentally impact the ability to provide permanency for the children, a
goal that has already been delayed.” Following that, the court summarily
denied grandmother’s request to change physical custody.
¶15 This matter is not akin to Bechtel. In Bechtel, the court found a
“paucity” of a record and “no indication at all as to why the [grandparent’s]
motion was denied.” 150 Ariz. at 72, 722 P.2d at 240. Such is not the case
here. This court did not “summarily” deny intervention, rather it made an
“individualized determination” based on the evidence as to whether
intervention was in the children’s best interests as required by Bechtel. See
150 Ariz. at 74, 722 P.2d at 242; see also William Z. v. ADES, 192 Ariz. 385,
389, 965 P.2d 1224, 1228 (App. 1998) (a summary denial of intervention is
an abuse of discretion).
¶16 Here, the court had the full severance record before it and had
interacted with grandmother on more than one occasion. It had
grandmother’s admission that she failed to disclose to DCS her two prior
interactions with child protective services in New York—which
grandmother dismissed as small matters that had occurred a long time ago.
It knew that the biological family was close knit, with various relatives,
including the biological parents, previously living in the same apartment
grandmother listed as her current address. The court knew the biological
parents appeared to still use that same address as their mailing address. It
knew that the family had unsuccessfully put forward several family
members to take the children, and it had removed the children from the
care of the maternal grandfather, who’s apartment it was, because he
allowed the biological parents contact with the children. It had the
information that grandmother advised the DCS worker, that although she
would keep the children away from their biological mother, she did not
believe the parents caused the injury and they were “loving” parents. It
saw the photos and documents she submitted with her motion to intervene
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IN RE: BELLA P.
Decision of the Court
demonstrating grandmother and her private investigator were watching
the placement family. The court heard allegations that grandmother had
caused a scene at the children’s daycare which had nearly resulted in the
police being called and had seen her behavior in court. And, most
importantly, it knew that there was a prospective adoptive family waiting
to adopt the children.
¶17 With all that knowledge and evidence, the court reasonably
determined that grandmother, based on the evidence, was not likely to be
cooperative or to protect the children from their biological family. It
reasonably determined that additional delay resulting from intervention
would detrimentally effect the children. The juvenile court, as the trier of
fact, is in the best position to weigh the evidence, observe the parties’
demeanor, and judge the credibility of witnesses. See Jesus M. v. Ariz. Dep't
Econ. Sec., 203 Ariz. 278, 53 P.3d 203 (App. 2002). We accept the juvenile
court's factual findings “unless no reasonable evidence supports those
findings.” Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d
68, 70 (App. 1997).
¶18 Finally, grandmother argues that she requested and was
entitled to an evidentiary hearing. DCS asserts both that the court did not
need an evidentiary hearing in order to determine whether intervention
should be granted and that grandmother assented to oral argument on
intervention. We agree. The court had sufficient evidence to make this best
interests determination, even if grandmother had objected to the lack of an
evidentiary hearing.
¶19 Given the extensive record in this matter, the court’s prior
experience with grandmother, the extensive period the children have been
in care and the need for permanency, grandmother has not shown the
juvenile court abused its discretion in denying her motion to intervene. For
these same reasons, we also find the juvenile court did not abuse its
discretion in denying grandmother’s request to change physical custody.
See Owen v. Blackhawk, 206 Ariz. 418, 421, ¶ 11, 79 P.3d 667, 670 (App. 2003)
(a change in physical custody determination is reviewed for an abuse of
discretion).
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IN RE: BELLA P.
Decision of the Court
CONCLUSION
¶20 The juvenile court is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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