Ariz. Department of Economic Security v. Lee – 8/12/2011

August 12, 2011

Arizona Court of Appeals Division One Holds That ADES’s Failure To Strictly Comply With A.R.S. § 8-822.3 Does Not Justify Releasing A Child From Temporary Custody Without First Inquiring Into The Child’s Well Being.

The Arizona Department of Economic Security (ADES) successfully petitioned to temporarily remove Child from Mother’s custody based on allegations that Child was at risk of abuse or neglect.  After Child was removed, Mother asked the court to return her child on grounds that ADES failed to conduct a review pursuant to A.R.S. § 8-822.3 (“822 Review”) before removing Child.  The juvenile court agreed but delayed return of Child for a few days so that ADES could appeal the decision.

ADES did not immediately appeal and the juvenile court ordered ADES to show cause why it had not returned Child.  As it turned out, ADES had conducted an 822 Review after removing Child and the review supported removal.  The juvenile court nevertheless ordered return of Child to Mother.  The court refused to hear evidence of Child’s health and safety, reasoning that ADES had to complete 822 Review and conclude that the review supported removal before making a dependency petition.  ADES petitioned for special action.

The Court of Appeals accepted jurisdiction, granted relief, and reversed the juvenile court.  When a CPS worker removes a child, section 8-822.3 requires an ADES review team to “assess options other than continued out-of-home placement.”  ADES must conduct the 822 Review and decide whether to petition for dependency within 72 hours.  In this case, ADES petitioned for dependency, removed the child, and then conducted the 822 Review four days later. 

Even assuming this failed to satisfy the statute, the Court held that the child’s well being “must be given paramount consideration.”  Although the 822 Review process may be “mandatory,” the statute does not require release of the child from custody as a consequence of ADES’s failure to strictly adhere to the statute.  In other words, “defective compliance” with the statute would not “justify releasing the Child from temporary custody without first inquiring as to the effect on her well being.” Thus, the juvenile court erred when it ordered release of the Child without hearing evidence regarding her health and safety.

Judge Orozco authored the unanimous opinion; Judges Johnsen and Timmer concurred.