WENDY L., ROBERT L. v. ADES, et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE WENDY L., ROBERT L., ) ) Appellants, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, PAUL C., JILL C., ) EMANI W., ) ) Appellees. ) __________________________________) DIVISION ONE FILED: 1/29/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-JV 12-0108 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103 (G); ARCAP 28) Appeal from the Superior Court in Apache County Cause No. S0100JD20080004 and S0100AD201000015 The Honorable Donna J. Grimsley, Judge AFFIRMED Thomas C. Horne, Attorney General By Eric Devany, Deputy County Attorney Attorneys for Appellees Phoenix The Rigg Law Firm, P.L.L.C. By Brett R. Rigg Attorneys for Appellees Pinetop David J. Martin Attorney at Law, P.L.L.C. By David J. Martin Attorney for Appellant N O R R I S, Judge Lakeside ¶1 This appeal arises out of a decision by the juvenile court denying a petition to adopt E.W. ( Child ) filed by her biological grandmother, Wendy L., and her husband, Robert L. Grandparents ). 1 (collectively In denying Grandparents petition, the court found it would be in Child s best interests for Jill C. and Paul C. (collectively Foster Parents ) to adopt her and granted their petition to adopt. ¶2 On abused its failures appeal, Grandparents discretion of applicable Child laws and argue because: Protective its first, Services internal the it juvenile understated ( CPS ) policy, court which to the follow amounted to active obstruction of their efforts to become Child s placement and adopt change Child s creating fairly her; an second, it placement unfair evaluating denied and situation their Grandparents increase which bonding visitation, prevented with requests Child the and to thereby court from fitness for adoption; third, it incorrectly found removing Child from Foster Parents would traumatize her; and fourth, it misinterpreted Arizona Revised Statute ( A.R.S. ) section 8-103 (Supp. 2012) as emphasizing established relationships over biological relationships in the determination of adoptive placement. 1 We After the clerk of this court assigned this appeal to Department B, Grandparents requested oral argument. The court has determined the facts and legal arguments are adequately presented in the briefs and record. Therefore, the court denies Grandparents request for oral argument. 2 disagree denying with each argument Grandparents and adoption affirm the court s petition and decision granting Foster Parents competing petition. FACTS AND PROCEDURAL BACKGROUND ¶3 In March 2008, after Robert had committed to relocating to Saipan, an island of the U.S. Commonwealth, for a two-year position, Wendy ( Mother ) was pregnant. Child and signed a learned her son s former girlfriend In May 2008, Mother gave birth to 90-day voluntary foster care agreement allowing CPS to have custody of Child; CPS placed Child with Foster Parents. Citrullinemia Shortly after, doctors discovered Child had Type I, a life-threatening genetic disorder in which the body does not process protein effectively and requires a strict diet and medication. ¶4 In June and July 2008, Wendy visited Child twice at Foster Parents home. CPS case workers and their supervisor were aware of Wendy s visits and told her she could not contact Child until her son ( Father ) established paternity. A CPS case Child worker at that time working with Mother and misinformed Wendy that Father needed a paternity test at his own expense, and Wendy made arrangements for Father to obtain such a test. In July 2008, Wendy gave the test results to this CPS case worker. CPS rejected the test for reasons not completely clear from the record, but which appear to relate, at least in 3 part, to chain of custody. Department of Economic On August 27, 2008, the Arizona ( ADES ) 2 Security filed a dependency petition as to Father and Mother, alleging, among other things, that Father was the biological father of Child. In September 2008, Mother stipulated to dependency, and the court ordered a paternity test for Father. In October 2008, Grandparents moved to Saipan. ¶5 In November 2008, the juvenile court found Child dependent as to Father based on ADES s factual allegations and approved a case plan of reunification for Father and Mother. On or around November 25, 2008, CPS received the results of the court-ordered and Wendy paternity found December 2008. out test about establishing Father s Father s paternity paternity, from him in Although Father had established his paternity to Child, CPS did not contact Wendy to determine if she would be interested in becoming Child s placement. ¶6 In April 2009, CPS invited Foster Parents to adopt Child and told them no family had come forward. As of that date, CPS had still made no effort to contact Wendy or consider Grandparents for adoptive placement; nor had Wendy contacted CPS since October 2008 to ask about Child s case. 2 ADES filed a Notice of Non-Participation in this appeal. Although it initially supported adoption by Foster Parents, it changed its position before the adoption hearing and supported adoption by Grandparents. 4 ¶7 In May 2009, Wendy called the CPS case worker then assigned to the case, Brad H., and left a message requesting him to call her. her call. Brad received Wendy s message but did not return At the June 2, 2009 permanency hearing, the court found Father and Mother had failed to comply with reunification services and changed the case plan to severance and adoption by a non-relative. In the meantime, Mother alerted Wendy to the change in the case plan. she and her husband Wendy then called Jill C., who said wanted to adopt Child and read from a document stating [Child] was an abandoned child [and] no other relatives [had] stepped forward. ¶8 On June 18, 2009, Grandparents moved to intervene in the case and expressed their interest in adopting Child. On July 28, 2009, Father and Mother consented to termination of their parental rights; the court allowed Grandparents intervene and changed the case plan to adoption. to In August 2009, Wendy returned to Arizona to pursue placement and eventual adoption. 3 week. Wendy then started to visit Child for two hours per Wendy s visits slowly increased over time, and she began overnight visits in September 2010. ¶9 In 2011, Grandparents and competing petitions to adopt Child. adoption hearing, the juvenile Parents found that Robert remained in Saipan until March 2012. 5 filed After a four-day contested court 3 Foster while both Grandparents and Foster Parents were suitable and loving, it was in Child s best interests to be adopted by Foster Parents. DISCUSSION I. CPS s Failure to Search for Grandparents as Adoptive Placement ¶10 On and appeal, actively Grandparents obstructed assert their CPS efforts interfered to become with Child s placement and eventually adopt her because CPS failed to follow the requirements of governing statutes, regulation, and its internal policy to give placement preference for relatives over non-relatives. grossly Additionally, understate[d] the they argue adverse impact failures to follow these requirements. not restrict these failures to any the on juvenile court them CPS s of Although Grandparents do particular time in their briefing on appeal, they focus their arguments on events that happened before the juvenile court changed termination and adoption by a non-relative. ¶11 the case plan to See supra ¶¶ 4-7. Based on our review of the record, and as the former CPS supervisor and case worker admitted at the adoption hearing, CPS simply forgot Wendy had visited Child, did not contact Wendy after Father had established paternity, and failed to [c]omplete an extensive and documented search for grandparents consistent with its internal policy for selecting an adoptive family. We do not condone these 6 failures. Nevertheless, despite these failures, the record also demonstrates that from the inception changed from of the dependency reunification to to the time termination, the case Grandparents plan chose not to pursue placement and were comfortable with Child staying with Foster Parents. ¶12 For example, before Wendy left for Saipan, Jill asked her whether she wanted to be the placement for Child while the reunification process went forward, and Wendy declined because her family was moving to Saipan; CPS had informed her she could not contact Child before Father had established paternity; and she thought reunification would take years. Although CPS did not inform Wendy regarding the paternity result, she knew for sure she was the Child s grandmother in December 2008, yet waited until May 2009 to contact CPS because she rested on the assumption that Mother had a year or two to reunite with Child, and if reunification failed, Grandparents would have the first right to adopt. remaining in foster Wendy admitted she was fine with Child care during the reunification process. Although we might not characterize CPS s failures as moot as the juvenile court did, we agree that - as long as the case 7 plan remained reunification -- Grandparents were unwilling and unable to be Child s placement as the court found. 4 ¶13 When the CPS case worker, Brad H., advised the Foster Care Review realistic Board goal he in did January not believe 2009, and reunification before was inviting a Foster Parents to adopt in April 2009, CPS should have contacted and evaluated Grandparents for adoptive placement. We cannot say, however, these failures amounted to active obstruction. As the record shows, not long after ADES requested the court to change the case plan from reunification to termination and adoption by a non-relative, asserted they Grandparents were entitled successfully to a statutory intervened and preference for Child s placement and wanted to adopt Child; accordingly, the court changed the plan to adoption. Subsequently, Wendy exercised her visitation with Child, received a home study, and was fully engaged in seeking placement and adoption. Therefore, even though CPS certainly could have done things differently to facilitate [Grandparents ] placement and adoption as the juvenile court pointed out, we cannot say CPS prevented them from pursuing adoption. 4 Grandparents also suggest CPS did not make sufficient efforts to achieve reunification with Mother. The record does not support this suggestion. 8 II. Grandparents Requests to Change Placement and Increase Visitation ¶14 Grandparents argue the juvenile court created an unfair situation which prevented it from objectively analyzing their bonding with Child and fitness for adoption because it denied their motions to change placement and increase their visitation, and failed to appreciate the importance of their familial ties to Child. rely on A.R.S. §§ In making this argument, Grandparents 8-514(B) (2007) and -845(A) (Supp. 2012), which address placement preference for grandparents, and Rule 84(b) of the Arizona Rules of Procedure for the Juvenile Court (in addition to child s best interests, adoption petitioner has burden to prove petitioner is fit and proper ). Grandparents also rely on Bechtel v. Rose, 150 Ariz. 68, 722 P.2d 236 (1986), a case in which our supreme court recognized the important role of grandparents court s orders in a child s concerning adoption, for an abuse of discretion. 216, 218, ¶ 4, 181 life. P.3d We review placement, the and juvenile visitation See Marco C. v. Sean C., 218 Ariz. 1137, 1139 (App. 2008) (adoption) (citation omitted); Antonio P. v. Ariz. Dep t. of Econ. Sec., 218 Ariz. 402, 404, ¶ 8, 187 P.3d 1115, 1117 (App. 2008) (placement) (citation omitted); Maricopa Cnty Juv. Action No. JD 5312, 178 Ariz. 372, 375, 873 (visitation) (citation omitted). 9 P.2d 710, 713 (App. 1994) ¶15 is Because the primary consideration in dependency cases the best interests of the child, a juvenile court substantial discretion when placing dependent children. has Antonio P., 218 Ariz. at 404, ¶ 8, 187 P.3d at 1117; see A.R.S. § 8 514(B) (ADES shall place a child in the least restrictive type of placement available, consistent with the needs of the child. ) (emphasis added); A.R.S. § 8 845(A)(2) (court may award dependent child to grandparent when it is in the child s best interests ). Furthermore, the order of placement in § 8 514(B) is a preference, not a mandate. 12, 187 P.3d at 1118. Antonio P., 218 Ariz. at 405, ¶ Here, in denying Grandparents November 2, 2009 motion to increase visitation and change placement, the juvenile court [Child s] explained serious medical that at issues, 19 months increasing of age, visitation with and causing [Child] more separation anxiety [would be] detrimental to her emotional and perhaps physical well being. court did not immediately grant Although the Grandparents subsequent requests to increase visitation, it ultimately permitted CPS to increase visitation and approved Wendy s overnight visits and out-of-state travel with Child. At the time of the adoption hearing, Child spent 56 hours per week - 1/3 of a week -- with Grandparents. ¶16 Further, the court did not ignore Grandparents familial bond to Child or their fitness to adopt. 10 The court found Wendy had a wonderful, loving and strong relationship with Child. It also found Grandparents - like Foster Parents -- were suitable to adopt and had no issues with their home. Yet, as the juvenile court correctly recognized, despite the importance of Grandparents role in Child s life, the primary consideration was Child s best interests. Because substantial evidence supports the court s finding it was in Child s best interests to be adopted by Foster Parents -- even though Grandparents were also fit and proper -- we cannot say the court abused its discretion in denying their motions to change placement and increase visitation. III. Trauma to Child if Removed from Foster Parents ¶17 Grandparents argue the juvenile court abused its discretion in finding separation from Foster Parents would cause Child trauma. psychologist, Parents, loving her and experience We disagree. testified de facto David McPhee, Ph.D., a forensic if Child parents competent - was even alternative significant removed with Foster transitioning caregivers developmental from distress -- she and to would possibly irreparable harm because, based on his observation, she was securely attached to Foster Parents. psychotherapist, positively during the noted attached first 24 in to his Wendy, months of report basic a 11 Brian Merrill, Ph.D., a that while attachments child s life, Child was are formed and Foster Parents had been present in Child s life during much of this period. Similarly, Betty Beaumont, a clinical therapist, testified that while transitioning can help reduce trauma and emotional distress, [t]here is no guaranty of no trauma. Thus, based on the evidence presented to it at the hearing, the court did not abuse its discretion in finding the only way to avoid any trauma to [Child] is to allow [Foster Parents] to adopt. IV. Established Relationships under A.R.S. § 8-103 ¶18 Grandparents challenge the juvenile court s interpretation that A.R.S. § 8-103(B) emphasizes the importance of the established prospective relationships. relationships adoptive Section between the family rather than 8-103(B) provides in child biological pertinent that ADES shall place a child in an adoptive home that best meets the safety, social, emotional, physical and mental health needs of the child. Other relevant factors for consideration, in no order of preference, shall include: . . . 3. Established relationships between the child and the prospective adoptive family as described in § 8-862, including placement with a grandparent or another member of the child s extended family including a person or foster parent who has a significant relationship with the child. 12 and part ¶19 The established statutory language relationships is under clear § on 8-103 its face encompass that both biological relationships with a grandparent and non-biological relationships with a foster parent. error in the court s view that Therefore, we find no § 8-103 focuses on all established relationships - biological or not - and does not give a preference to blood relationships. CONCLUSION ¶20 court s For the decision foregoing denying reasons, Grandparents we affirm petition the to juvenile adopt and granting Foster Parents petition to adopt. /s/___________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: _/s/________________________________ ANDREW W. GOULD, Judge _/s/___________________________________ RANDALL M. HOWE, Judge 13

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