Grаce Howard ALLEN, Petitioner, v. Hon. Javier CHON-LOPEZ, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Arizona Department of Economic Security and T.S.A., Real Parties in Interest.
No. 2 CA-SA 2006-0101
Court of Appeals of Arizona, Division 2, Department B.
Feb. 8, 2007
Review Denied May 22, 2007
153 P.3d 382
banks, Inc. v. Fairbanks N. Star Borough, 865 P.2d 741, 745 (Alaska 1993) (“We adopt the majority interpretation of ‘aggrieved’ to deny standing in land use cases to a business competitor whose only alleged injury is potential increased competition.“); Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md.App. 479, 822 A.2d 478, 490 (2003) (“Acсordingly, a person is not ‘aggrieved’ for standing purposes when his sole interest in challenging a zoning decision is to stave off competition with his established business.“); but see City of Miami v. Franklin Leslie, Inc., 179 So.2d 622, 624 (Fla. App.1965) (finding that liquor license holder had standing to challenge zoning variance granted to a competitor).
¶ 31 Arizona case law reflects a long-standing policy to promote competition that we do not seek to inhibit. See Bonney v. N. Ariz. Amusement Co., 78 Ariz. 155, 156, 277 P.2d 248, 249 (1954) (“It has always been the policy of the common law to foster trade and promote free competition....“); Amex Distrib. Co., Inc. v. Mascari, 150 Ariz. 510, 516, 724 P.2d 596, 602 (App.1986) (“Our society is extremely mobile and our free economy is based upon competition.“). This policy may be considered below in a decision on the merits. The issue before us, however, is not whether there will be increased or decreased competition, but whether Center Bay has made allegations of “particularizеd harm” sufficient to confer standing. Blanchard, 196 Ariz. at 118, 124, 993 P.2d at 1082. As stated above, Center Bay has met this test.
V.
¶ 32 Center Bay has alleged facts sufficient to confer standing. The decision of the superior court is therefore reversed and this matter is remanded for proceedings consistent with this opinion.
CONCURRING: G. MURRAY SNOW, Presiding Judge, and DONN KESSLER,
Scott E. Myers, Tucson, Attorney for Petitioner.
Suzanne Laursen, Tucson, Attorney for Minor.
Terry A. Goddard, Attorney General By Claudia Acosta Collings, Tucson, Attorneys for Real Party in Interest.
David M. Lujan, Phoenix, Attorney for Amicus Curiae, Justice for Children-Arizona.
OPINION
BRAMMER, Judge.
¶ 1 In this special action, petitioner Grace Allen challenges the respondent judge‘s denial of her motion to intervene in the underlying dependency proceeding of T., a minor child and Allen‘s nephew. Because Allen has no “equally plain, speedy, and adequate rem-edy
Factual and Procedural Background1
¶ 2 T. was born September 23, 2003 to Karen A. and Carl R. When T. was one week old, Karen left him with his maternal uncle, Marlon Allen, and Allen, Marlon‘s “significant other,” then named Grace Howard.2 Allen filed a dependency petition in April 2004, requesting she and Marlon Allen be given physical custody of T. By July 2004, T.‘s parents had signed documents consenting to Allen‘s and Marlon‘s adoption of T. Allen and Marlon then moved to dismiss the dependency petition. In August 2004, the juvenile court granted the motion and awarded temporary custody of T. to Allen and Marlon. Although Allen and Marlon have not yet adopted T., they retained temporary custody of him until August 10, 2006.
¶ 3 On August 4, 2006, Allen was taken by ambulance to a hospital after expressing suicidal ideation and using “a large amount of cocaine and alcohol.” Allen‘s subsequent psychiatric evaluation stated she “ha[d] a history of cocaine and alcohol use which ha[d] been in remission for many years.” Allen reported she had a long history of depression that had recently worsenеd because of marital and financial stress. The evaluation recommended that Allen remain hospitalized for five to seven days “for safety, stabilization and diagnostic clarification.”
¶ 4 While Allen was hospitalized, Child Protective Services (CPS) “received a report alleging that [T. was] at risk due to his living environment and the adults providing care for him.” Allen was apparently released on August 10, the same day CPS removed T. from her and Marlon‘s home and placed him in a group home. The following day, Karen and Carl signed documents consenting to Allen‘s adoption of T.
¶ 5 Real party in interest the Arizona Department of Economic Security (ADES) filed a dependency petition on August 15, alleging that “[a]t the present time no adult in [T.‘s] home is appropriately caring for [him].” The CPS report to the juvenile court stated Karen and Carl, T.‘s biological parents, were living in Marlon‘s and Allen‘s home, as was another adult. The report alleged that T.‘s рarents and the other adult were drug abusers. Allen and Marlon admitted to the CPS investigator “their home environment was a poor one,” that “Marlon has a drinking and domestic violence problem,” that Allen “has depression and mental instability,” and that, although T.‘s “biological parents are not suitable parents,” Marlon and Allen “let the parents live in their home and care for [T.][ ]alone.” The report further stated Allen and Marlon had not proceeded with T.‘s adoptiоn because Allen feared she would not pass “the social history portion of the adoption study” and that Marlon “didn‘t want to spend the money necessary for the adoption.”
¶ 6 Allen filed a motion to intervene in the dependency on August 17. Before ruling on that motion, the respondent judge adjudicated T. dependent as to his parents, awarded legal custody of T. to ADES, and ordered that T. “remain in his current placement” at the group home. The respondent judgе subsequently denied Allen‘s motion to intervene despite requesting that ADES “consider [Al-len]
¶ 7 On September 6, CPS referred Allen “for a home study” regarding placement but “ruled out” Allen and Marlon “as a possible placement for T.” on September 11, apparently because Allen “did not meet the preliminary requirements for placement.” In its report to the juvenile court for the permanency hearing, CPS recommended that Karen‘s and Carl‘s parental rights be terminated and that T. not be placed with Allen. The report enumerated concerns about Allen‘s and Marlon‘s “failure to protect [T.] from his biological parents, from the domestic violence in the home, and from the drug-using roommate.” The report also cited “their failure to seek/provide placement for [T.], their risk of substance abuse, the unstable home environment, and unresolved mental issues” as additional concerns.
¶ 8 The respondent judge held a permanency hearing on October 6, finding “the most appropriate plan for [T.] is severance and adoption,” and ordered ADES to file a motion to terminate Karen‘s and Carl‘s parent-child relationship. Allen filed a second motion to intervene that same day. She included with the motion an Arizona‘s Children Association‘s adoptive home study that recommended Allen “be certified as acceptable to adopt.” The study noted Allen had “moved to an apartment where she can live alone with [T.,] ha[d] filed for divorce and wants to adopt as a single parent, [and that] Marlon ha[d] agreed to that plan.” After a hearing, the respondent judge denied Allen‘s motion on November 1. This petition for special action followed.
Discussion
¶ 9 Allen sought to intervene in the dependency proceeding pursuant to
¶ 10 In Bechtel, our supreme court determined that 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.” 150 Ariz. at 73, 722 P.2d at 241. The supreme court noted that, under former
¶ 11 Similarly, the current version of that statute permits the juvenile court to award a dependent child “to a grandparent or another member of the сhild‘s extended family including a person who has a significant relationship with the child.”
¶ 12 If the conditions of
[T]he 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 rеexamined, 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.
Id. at 72, 722 P.2d at 240, quoting Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir.1977) (footnotes omitted in Bechtel).
¶ 13 In his minute entry denying Allen‘s motion to intervene, the respondent judge stated:
Under the facts of this сase, the Court finds that allowing Grace Allen to intervene would be adverse to [T.‘s] best interest. At this time, [T.] deserves a safe, secure and permanent placement. Ms. Allen had ample opportunity to provide such a placement for him. During the last four months, Ms. Allen‘s severe personal problems, both mental and emotional, directly impacted [T.‘s] safety, security, and permanency. [T.] will derive no affirmative benefit if this Court allows Ms. Allen to intervene at this late datе.
(Footnote omitted). The respondent judge also noted neither Allen nor her husband had completed their contemplated adoption of T. The bulk of the respondent judge‘s comments, however, refer not to the Bechtel factors related to intervention, but instead to whether T. should be placed with Allen once Karen‘s and Carl‘s parental rights are terminated. A proper inquiry under Bechtel focuses not on the eventual outcome of the proceeding but rather on the effect intervention may have on the proceeding. As the court noted in Bechtel, intervention merely allows the party seeking intervention to be heard, “it does not confer any right to custody upon them.” Id. at 73 n. 3, 722 P.2d at 241 n. 3. Although “[the custody] decision remains the province of the [juvenile court],” id., it was premature for the respondent judge to make that decision in the context of a motion to intervene. Thus, it was improper for the respondent judge to deny Allen‘s motion to intervene on the basis that she ultimately may not be awarded permanent custody of T., rather than permitting her to litigate that issue as a party.
¶ 15 We appreciate, based on the current state of the record, that Allen likely faces an uphill battle to demonstrate that she is a suitable adoptive parent for T. And it is conceivable that, if Allen is ultimately permitted to intervene, more complex and lengthy litigation may result than if Allen did not seek custody. We do not agree with ADES, however, that any such delay necessarily would be undue. Allen is the only member of T.‘s family who is seeking custody and has been responsible for his care since his birth.
¶ 16 We accept jurisdiction of this special action and, for the reasons stated above, we conclude the respondent judge abused his discretion in denying Allen‘s motion to intervene. We therefore vacate the order and direct the respondent judge to reconsider Allen‘s motion to intervene in light of the factors our supreme court identified in Bechtel.4
CONCURRING: PETER J. ECKERSTROM, Presiding Judge.
ESPINOSA, Judge, dissenting.
¶ 17 I refrain frоm joining the majority decision because, as the majority acknowledges, our standard of review is abuse of discretion, Mitchell, 83 Ariz. 328, 333, 320 P.2d 955, 958, and there is ample justification supporting the respondent judge‘s decision to deny Allen‘s motion to intervene in this dependency proceeding. In my view, the majority erroneously assumes the respondent ignored relevant factors and then substitutes its own judgment to conclude the juvenile court abused its discretion, something beyond our proper purview. Therefore, I respectfully dissent.
¶ 18 The courts in Bechtel and William Z., cited by the majority, found abuses of discretion in the denial of intervention, but only when the trial courts had summarily denied the motions without addressing relevant factors. When reviewing a juvenile court‘s discretionary decisions, we will uphold its rulings if there is evidence to support them. See Leslie C. v. Maricopa County Juvenile Court, 193 Ariz. 134, 135, 971 P.2d 181, 182 (App.1997). And appellate courts will infer a trial court has made any findings supportable by the record that are necessary to sustain its judgment. See Elliott v. Elliott, 165 Ariz. 128, 135, 796 P.2d 930, 937 (App.1990). “We do not re-weigh the evidence on review.” Jesus M. v. Ariz. Dep‘t of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App.2002).
¶ 19 At the outset, it is not clear, contrary to the majority‘s conclusion, that Allen “is eligible to be awarded permanent custody.” Although the majority refers to Allen as T.‘s “maternal aunt,” the relationship exists only through Allen‘s marriage to T.‘s maternal uncle. The record reflects Allen claims to have begun the process of dissolving that marriage, and when that is complete, Allen will no longer have a legal relationship to T., and obviously has no blood relationship to him. Even absent the dissolution proceedings, it is unclear whether a relative only by marriage even falls within the holding of Bechtel. See William Z. v. Ariz. Dep‘t of Econ. Sec., 192 Ariz. 385, 388 n. 6, 965 P.2d 1224, 1227 n. 6 (App.1998) (“We proceed with
¶ 20 Second, while the majority seems to focus on “assisting [Allen] in obtaining justice and protecting [her] rights,” as a non-parent, and in the foreseeable future, a non-relative, Allen has little, if any, legal interest to be protected in this case. Allen could adopt T. without being a party in the dependency case, which, indeed, is the most common avenue for adoptive parents. The majority‘s decision suggests any long-term foster parent or temporary custodian who has a child removed from their care should, and under its reasoning, would be permitted to intervene in the dependency case. Cf. Bechtel, 150 Ariz. at 74, 722 P.2d at 242 (“However, we do not hold that mеre eligibility for consideration [as guardians] automatically confers a right to intervene in dependency proceedings.“). Thus, the first two Bechtel factors clearly support the respondent judge‘s ruling and it should not be assumed he failed to consider them. See Elliott; see also Fuentes v. Fuentes, 209 Ariz. 51, ¶ 18, 97 P.3d 876, 880-81 (App.2004) (appellate court presumes trial court considered all evidence in reaching its decision).
¶ 21 The undue delay factor noted in Bechtel was expressly considered by the respondent when he specifically found: “[T.] will derive no affirmative benefit if this Court allows Ms. Allen to intervene at this late date.” For the majority to disregard the added delay that Allen‘s intervention would likely inject into the case ignores the sweeping changes in the dependency statutes since Bechtel and the other cited cases were decided, implementing the “Model Court” program and creating a statutory mandate that the juvenile court hold a permanency hearing “within twelve months after the child is removed” and dеtermine “the most appropriate plan for the child and shall order the plan to be accomplished within a specified period of time.”
¶ 22 Most problematic, however, is the majority‘s glossing over the respondent judge‘s concerns for the child and the ample basis for that concern, both factual and legal. The majority criticizes the respondent for focusing on the “eventual outcome” for T., rather than “the effect of intervention on the proceedings.” But, in my view, the respondent got it exactly right. Not only is “‘the legal position [the intervenor] seek[s] to advance and its probable relation to the merits of the case‘” another express Bechtel factor, 150 Ariz. at 72, 722 P.2d at 240 (emphasis added), quoting Spangler, 552 F.2d at 1329, but the overarching rule guiding a court‘s judgment is that “the best interest of the child shall govern.” Bechtel, 150 Ariz. at 73, 722 P.2d at 241; see also William Z., 192 Ariz. 385, ¶ 14, 965 P.2d at 1227 (“We focus on the welfare of the children, giving only secondary consideration to the remaining interested parties.“).
¶ 24 The respondent judge expressly found “allowing Grace Allen to intervene would be adverse to [T.‘s] best interest.” This finding is key in his denial of Allen‘s motion and is supported by ample evidence, demonstrating the respondent properly exercised his discretion, notwithstanding thаt this court might reach a different conclusion under its own view of the facts of this case. Jesus M., 203 Ariz. 278, ¶ 12, 53 P.3d at 207. I would therefore decline jurisdiction of the special action.
CITY OF BISBEE, a municipal corporation of the State of Arizona, Plaintiff/Appellee, v. ARIZONA WATER COMPANY, an Arizona corporation, Defendant/Appellant.
No. 2 CA-CV 2006-0106
Court of Appeals of Arizona, Division 2, Department A.
Feb. 8, 2007.
153 P.3d 389