Arizona Depatment of Economic Security v. Lee
228 Ariz. 150
| Ariz. Ct. App. | 2011Background
- ADES petitioned for dependency alleging Mother’s neglect, substance abuse, and mental health issues, and the child was placed as a temporary ward with ADES.
- The child was removed from Mother's custody around May 13, 2011, and a 822 review was conducted on May 17, 2011.
- A 824 hearing on May 17, 2011 kept the child in ADES custody pending the dependency proceedings.
- Mother moved for return of the child arguing that a timely 822 review had not been conducted before removal; the juvenile court ordered return by May 26, stayed to allow appellate action.
- After a hearing, the court found ADES had not timely performed an 822 review and ordered the Child returned to Mother without considering health and safety, prompting a special action.
- The Arizona Court of Appeals held that health and safety are paramount and that an untimely 822 review does not automatically require return or divest ADES of custody; the order was vacated pending a hearing on health and safety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does defective 822.3 compliance nullify custody authority? | Mother: 822.3 must be followed before removal. | ADES: statute is mandatory in sequencing but not a jurisdictional trigger to release. | No automatic release; health/safety paramount governs. |
| Must health and safety be explored before releasing a child from temporary custody? | Mother: lack of 822 review invalidates retention and warrants release. | ADES: 822.3 timing is the issue, not health and safety at release. | Yes; health and safety must be considered before release. |
| Did the juvenile court err by ordering return without evidence on the Child’s health and safety? | Mother: order should reflect 822.3 sequencing and review outcomes. | ADES: procedural compliance should not endanger the child’s welfare. | Yes; court erred; order vacated and remanded for health/safety hearing. |
Key Cases Cited
- Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402 (App.2008) (best interests standard in dependency cases)
- Hays v. Gama, 205 Ariz. 99 (Ariz. App. 2003) (consideration of best interests in sanctions in custody cases)
- Forino v. Ariz. Dept. of Transp., 191 Ariz. 77 (App.1997) (directory vs. mandatory construction of 'shall' in statutes)
- HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361 (App.2001) (mandatory vs. directory interpretation of 'shall')
- Lincoln v. Holt, 215 Ariz. 21 (App.2007) (statutory interpretation harmony with related laws)
- Diana H. v. Rubin, 217 Ariz. 131 (App.2007) (child welfare priority in statutory interpretation)
- Resolution Trust Corp. v. Western Technologies, Inc., 179 Ariz. 195 (App.1994) (relevance of statutory interpretation in administrative context)