LISA K., Aрpellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Julian N., Appellees.
No. 2 CA-JV 2012-0007
Court of Appeals of Arizona, Division 2, Department B.
June 26, 2012.
281 P.3d 1041
Thomas C. Horne, Arizona Attorney General By Claudia Acosta Collings, Tucson, Attorneys for Appellee Arizona, Department of Economic Security.
OPINION
VÁSQUEZ, Presiding Judge.
¶1 Lisa K. appeals from the juvenile court‘s order terminating her parental rights to her son, Julian N., born in July 2009, based on mental illness or chronic substance abuse and the length of time in court-ordered care.1 See
¶2 A juvenile court may terminate a parent‘s rights if it finds by clear and convincing evidence that any statutory ground for severance exists and if it finds by a preponderance of the evidence that severance is in the child‘s best interests.
Background
¶3 The relevant facts are essentially undisputed and, together with the procedural history of this case, are as follows. Based on reports of domestic violence between Lisa and Julian‘s father and a subsequent investigation, the Arizona Department of Economic Security (ADES) removed Julian from Lisa‘s care in November 2009, when he was four months old. After Lisa admitted the allegations in the dependency petition, the juvenile court adjudicated Julian dependent in February 2010 and approved a case-plan goal of family reunification. The court held a combined permanency hearing and dependency review hearing in November 2010, at which it gave Lisa three more months to comply with the case plan and achieve reunification with Julian. After the continued permanency hearing in February 2011, the court found Lisa had been “substantially compliant” with the case-plan goals, but she nevertheless had “failed to benefit from the case plan services provided thus far to the extent that the Court would have hoped and expected” and remained either unable or unwilling to adequately parent Julian. Although ADES recommended changing thе case-plan goal to severance and adoption, the court also found appropriate a concurrent goal of family reunification.
¶4 In April 2011, Lisa filed a motion pursuant to Rule 58(D), Ariz. R.P. Juv. Ct., in which she opposed the changed case-plan goal and requested an evidentiary hearing on that issue. At a combined hearing on the motion and dependency review on May 3, ADES did not oppose Lisa‘s motion, and the juvenile сourt granted it, setting an evidentiary hearing commencing on May 23. In July, following three days of hearings, the court determined it clearly was in Julian‘s best interests to change the case-plan goal to severance and adoption. In accordance with
¶5 In August 2011, Lisa filed a special action petition in which she asked this court to find
¶6 On November 1, 2011, Lisa filed a notice in the juvenile court, stating she had filеd a civil rights complaint in the United States District Court for the District of Arizona. On the first day of the contested severance hearing, Judge Gus Aragón, the judge assigned to this case, informed the parties that although a federal action had been filed in the matter naming him personally as a defendant, he saw no reason to recuse himself. Judge Aragón then asked if “anybody need[ed] to make further record on that.” Lisa‘s attorney responded that he had filed thе federal lawsuit, which was “no different than the special actions that [had] been filed previously [in this matter]” and added that he did not “see any reason to ask [the] Court to recuse itself from the action.”4 Judge Aragón therefore proceeded with the severance hearing. After four days of hear-
Standing
¶7 On appeal, Lisa argues
Is § 8-862 Facially Unconstitutional?
¶8 Lisa contends
¶9 “We review alleged constitutional violations de novo, . . . and when possible, construe statutes to uphold their constitutionality.” State v. Hargrave, 225 Ariz. 1, ¶ 42, 234 P.3d 569, 581 (2010) (citations omitted). “We presume a statute to be constitutional and will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions.” Granville v. Dodge, 195 Ariz. 119, ¶ 17, 985 P.2d 604, 608 (App.1999). The burden of establishing that a statute is unconstitutional is on the person challenging the statute. In re Maricopa Cnty. Juv. Action No. JT9065297, 181 Ariz. 69, 81, 887 P.2d 599, 611 (App.1994). We review issues of statutory interpretation de novo. See State v. Barnett, 209 Ariz. 352, ¶ 7, 101 P.3d 646, 648 (App.2004). “If a statute‘s language is clear and unambiguous, courts must give effect to that language and need not employ the rules of statutory construction.” Seyrafi, 201 Ariz. 147, ¶ 11, 32 P.3d at 433.
¶10 “The touchstone of due process under both the Arizona and federal constitutions is fundamental fairness,” State v. Melendez, 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992), whereas “[p]rocedural due process guarantees that permissible governmental interference is fairly achieved.” Simpson v. Owens, 207 Ariz. 261, ¶ 17, 85 P.3d 478, 484 (App.2004). And, “a parent indeed does have a fundamental interest in the care, custody and control of her child, a right that is protected by the Due Process Clause of the United States Constitution.” Mara M. v.
¶11 Although Lisa asserts a facial challenge to
¶12 The legislature enacted
¶13 Although Lisa argues the statute is facially unconstitutional because there are no circumstances under which it can be applied constitutionаlly, the facts in her case persuade us otherwise. Here, the juvenile court conducted several permanency hearings and waited until Julian had been out of the family home for almost two years before it changed the case-plan goal to severance and adoption and ordered ADES to file a motion to terminate. At that point, the court had done nothing more than determine that termination was in Julian‘s best interests, not that termination would occur. ADES, not the court, then was required to decide which grounds to allege in the motion. See
¶14 We are not persuaded that the juvenile court generаlly, or in this case specifically, was incapable of assessing the evidence and applying the appropriate burdens of proof—both as to the grounds for severance and Julian‘s best interests—at the termination hearing. Lisa argues, “[i]t is not enough to simply fall back on the established presumption that judges preside with honesty and integrity.” See State v. Warner, 159 Ariz. 46, 52, 764 P.2d 1105, 1111 (1988) (trial court presumed to know and apply rules of evidence and burden of proof), сiting State v. Hadd, 127 Ariz. 270, 275, 619 P.2d 1047, 1052 (App.1980); Emmett McLoughlin Realty, Inc. v. Pima Cnty., 212 Ariz. 351, ¶ 24, 132 P.3d 290, 296 (App.2006) (judges entitled to presumption of “honesty and integrity“), quoting Pavlik, 195 Ariz. 148, ¶ 12, 985 P.2d at 639. However, the entire statutory process, as outlined above, provides adequate procedural protections and safeguards to assure that a parent is not denied the impartial tribunal to which she is entitled, and that ADES‘s burden of proof is not rendered “meaningless,” as Lisa asserts.
¶15 Nor is Arizona the only state that requires or permits the juvenile court to order that a motion to tеrminate be filed.6 And courts addressing this procedure have upheld its constitutionality, whether in the form of an “order,” “directive,” “recommendation,” or pursuant to a court‘s inherent authority. See, e.g., In re D.A., 189 P.3d 631, 634-37 (Mont.2008) (by ordering Department of Public Health and Human Services to “take steps . . . to permanently place the children,” and later presiding over termination hearing, court did not violate Montana statute or parents’ due process right to fair hеaring); In re K.C., 660 N.W.2d 29, 35-36 (Iowa 2003) (statute authorizing juvenile court to order county attorney to initiate termination proceedings not unconstitutional), citing In re J.R.T., 427 So. 2d 251 (Fla. Dist. Ct. App.1983), In re D.S., 198 Ill. 2d 309, 261 Ill.Dec. 281, 763 N.E.2d 251 (2001), In re D.G.C., 690 So. 2d 237 (La.App.1997), In re G.S., 731 S.W.2d 525 (Mo.Ct.App.1987). See also Carter v. Knox Cnty. Office of Family & Children, 761 N.E.2d 431, 436 (Ind.Ct.App.2001) (judge‘s approval of permanency plan recommending termination did not demonstrate judge, who also presided over termination hearing, had failed to retain his “impartiality and objectivity“); In re LaRue, 113 N.C.App. 807, 440 S.E.2d 301, 303 (1994) (recusal not required on grounds of personal bias or prejudice after court recommends department of social services pursue termination of parental rights).
¶16 Importantly, a juvenile court‘s orders entered after a permanency hearing are not final and appealable, specifically because they “contemplate further proceedings that will determine the ultimate outcome of the case,” which remains uncertain until the proceedings have concluded. Rita J., 196 Ariz.
¶17 We find instructive the reasoning of the Superior Court of Pennsylvania in In re Quick, 384 Pa.Super. 412, 559 A.2d 42, 46-47 (1989):7
We fail to see how being party to a dispositional hearing in which removal from the parents’ custody was required by clear necessity would prejudice the parent some years later, when the evidence in a termination proceeding establishes the conditions requiring removal have substantially been uncorrected. . . . The consistent thread, over many years flowing through the management of family cases, has been that so far as possible the judge who initially heard the family matter should remain with it to its conclusion. Indeed, one of the most disruptive and disconcerting factors in multi-judge jurisdictions is the fragmentation of different aspects of a family case resulting from the hearing by several judges of different stages of a particular proceeding. . . . Unless it was unavoidable, it would be self-defeating for the judge assigned to the termination case to be a different judge than the one who heard the dependency case. The argument by appellant that a de novo hearing was necessary, so that bias emanating from prior hearings on dependency would not infect the termination proceedings, is unmerited unless it can be established that bias actually existed in fact. . . . A new judge will not have the benefit of recall of hearings, reports and directions not fully detailed in the cold or abbreviated reports and records presented at the termination proceeding. That is not to say these recollections will be the basis for the termination decision, which must stand on its own evidence and be established by clear and convincing evidence.
¶18 We also disagree with Lisa that permitting the juvenile court to both dirеct the filing of the motion pursuant to
Conclusion
¶19 Lisa has not established beyond a reasonable doubt that
CONCURRING: VIRGINIA C. KELLY and PHILIP G. ESPINOSA, Judges.
Notes
B. At the permanency hearing, the court shall determine:
1. Whether termination of parental rights, adoption, permanent guardianship or some other permanent legal status is the most appropriate plan for the child and shall order the plan to be accomplished within a specified period of time. . . .
D. If the court determines that the termination of parental rights is clearly in the best interests of the child, the court shall:
1. Order the department . . . to file within ten days after the permanency hearing a motion alleging one or more of the grounds prescribed in § 8-533 for termination of parental rights. The party who files the motion has the burden of presenting evidence at the termination hearing to prove the allegations in the motion.
2. Set a date for an initial hearing on the motion for termination of parental rights within thirty days after the permanency hearing. If the termination is contested at the initial hearing, the court shall set a date for the trial on termination of parental rights within ninety days after the permanency hearing.
