Sherri C. v. Dcs, T.O.

NOTICE: NOT FOR PUBLICATION.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
SHERRI C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.O., Appellees.
No. 1 CA-JV 14-0193
FILED 12-09-2014
Appeal from the Superior Court in Maricopa County
Nos. JD27351 and JS12080
The Honorable Cari A. Harrison, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED
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
SHERRI C. v. DCS, T.O.
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.
G O U L D, Judge:
¶1 Sherri C. appeals from the juvenile court order revoking
Sherri’s permanent guardianship of T.O. (“Child”). For the reasons that
follow, we vacate the revocation of Sherri’s guardianship and remand for
further proceedings.
BACKGROUND
¶2 Sherri and her spouse, Scott C., were granted permanent
guardianship of Child in November 2012. Sherri and Scott, however, did
not adopt Child. In 2013, when Child informed Sherri that she had been
sexually molested by Scott during Sherri’s absence over the Labor Day
weekend, Sherri immediately reported the incident to the police. In light
of the report, DCS filed a dependency petition, taking Child into
temporary physical custody in early November 2013, and the court held a
dependency trial in June. DCS did not file a petition to revoke the
guardianship.
¶3 At the conclusion of the dependency trial, in addition to
urging the court to find Child dependent, DCS asked the court to revoke
Sherri and Scott’s permanent guardianship. Although no written request
to revoke the guardianship had ever been filed, there was no objection to
this request. The court granted the dependency; it found DCS proved the
allegations of the dependency petition by a “preponderance of the
evidence,” namely, that Sherri failed to protect Child from abuse. The
court also stated, “I am going to order that the guardianship be revoked at
this time as I believe that the statutes that apply to it would support the
revoking or revocation of the guardianship.”
¶4 Sherri timely appealed; she argues, among other things, that
the court violated her due process rights when it revoked the permanent
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SHERRI C. v. DCS, T.O.
Decision of the Court
guardianship because no petition to revoke had been filed in accordance
with Arizona Revised Statutes (“A.R.S.”) section 8-873.1
DISCUSSION
¶5 Because Sherri did not raise this argument in the juvenile
court, we review for fundamental error. State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005); see also Monica C. v. Ariz. Dep’t of Econ.
Sec., 211 Ariz. 89, 94, ¶ 22, 118 P.3d 37, 42 (App. 2005) (applying
fundamental error review when party did not object to noncompliance
with juvenile court rules of procedure). Fundamental error is “’error
going to the foundation of the case, error that takes from the [party] a
right essential to [her] defense, and error of such magnitude that the
[party] could not possibly have received a fair trial.’” Henderson, 210 Ariz.
at 567, ¶ 19, 115 P.3d at 607 (quoting State v. Hunter, 142 Ariz. 88, 90, 688
P.2d 980, 982 (1984). The complaining party bears “the burden of
persuasion in fundamental error review,” and “must establish both that
fundamental error exists and that the error in his case caused him
prejudice.” Id. at ¶¶ 19-20.
¶6 We find error. The guardianship statutes expressly require
(1) that a petition to revoke the guardianship, alleging a significant change
in circumstances, be filed; (2) that the court find, by clear and convincing
evidence, that the alleged change actually exists; and (3) that the court find
revocation is in the child’s best interests. A.R.S. § 8-873. No such petition
was filed, and no findings relevant to the revocation were made.
¶7 DCS argues that Sherri has not carried her burden to show
resulting prejudice. However, the record makes the prejudice to Sherri
clear. To revoke a permanent guardianship, the court must find, by clear
and convincing evidence, a significant change in circumstances. A.R.S.
§ 8-873; Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 556, 944 P.2d 68,
71 (App. 1997) (requiring proof by clear and convincing evidence of a
statutory ground for removal of a guardian). The court is also required to
find that revocation is in the child’s best interests. A.R.S. § 8-873.
¶8 In this case, the court did not make findings that clear and
convincing evidence supported revocation; instead, the court vaguely
stated the guardianship should be revoked because it “believe[d] that the
statutes that apply to it [guardianship proceedings] would support the
1 Scott C. is not a party to this appeal.
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SHERRI C. v. DCS, T.O.
Decision of the Court
revoking or revocation of the guardianship.” The court based the
revocation on its finding that a preponderance of the evidence showed
Child was dependent, which was the incorrect burden of proof. See State
v. King, 158 Ariz. 419, 425, 763 P.2d 239, 245 (1988) (finding misstatement
of the burden of proof is fundamental error). “We will infer the necessary
findings to affirm the superior court . . . only if the implied findings do not
conflict with the court’s express findings.” State v. Zamora, 220 Ariz. 63,
67, ¶ 7, 202 P.3d 528, 532 (App. 2009). Here, because the court expressly
applied the standard for a dependency hearing to the guardian
revocation, we cannot infer the findings necessary to support its
revocation of the guardianship.
¶9 Furthermore, the court did not consider statutorily required
elements to support the revocation. Because the record is devoid of
discussion of whether revocation of the guardianship was in Child’s best
interests, we cannot presume the court considered Child’s best interests in
the revocation. See A.R.S. § 8-873 (requiring proof that revocation is in the
child’s best interests); see also Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 50, ¶ 17, 83 P.3d 43, 50 (App. 2004) (stating that appellate court
will presume the juvenile court made every finding necessary to support
the severance order “if reasonable evidence supports the order”). This is
not a case of the juvenile court failing to expressly make a necessary
finding that is nonetheless supported by the record. This is fundamental
error and we must vacate the revocation of the guardianship.2
2 By vacating the revocation of the guardianship, we need not
address Sheri’s argument that DCS failed to prove the grounds for
revocation by clear and convincing evidence. We also reject Sherri’s
argument that the guardianship could not be revoked without DCS
providing services to Sherri. See Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189
Ariz. 553, 557-58, 944 P.2d 68, 72-73 (App. 1997). Finally, we note the
juvenile court’s dependency finding and physical custody orders
removing Child from Sherri’s custody are not challenged on appeal and
remain in place.
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SHERRI C. v. DCS, T.O.
Decision of the Court
CONCLUSION
¶10 We vacate the order revoking Sherri’s guardianship over
Child and remand for further proceedings
:gsh
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