Grace Howard Allen v. ADES and T.S.A – 2/8/2007

February 14, 2007

Arizona Court of Appeals Division Two Holds 2-1 That Judge Abused His Discretion In Denying Maternal Aunt’s Motion To Intervene In Juvenile’s Dependency Proceedings.

T, a minor, was born to Karen and Carl in September 2003. When T was one week old, Karen left T with his maternal uncle, Marlon Allen, and Marlon’s wife, Grace Allen (then Grace Howard). Grace had been Marlon’s “significant other” for 18 years, and Marlon and Grace married during the time they cared for T, sometime in 2004. Grace filed a dependency petition in April 2004, and by July 2004, T’s parents had signed documents consenting to Grace and Marlon’s adoption of T. In August 2004, the juvenile court granted temporary custody of T to Grace and Marlon, who retained temporary custody of him until August 2006.

On August 4, 2006, Grace was taken to the hospital after expressing suicidal ideations and using a large amount of cocaine and alcohol. Grace’s psychological evaluation noted that she “had a history of cocaine use and alcohol use which ha[d] been in remission for many years.” Grace reported she had a long history of depression that had recently worsened. CPS removed T on August 10, 2006, the same day Grace was released.

Real party in interest DES filed a dependency petition alleging no adult in T’s home was appropriately caring for him, and Grace filed a motion to intervene on August 17. Before ruling on Grace’s motion, the respondent judge awarded legal custody of T to ADES and ordered that T remain in the group home. He later denied Grace’s motion to intervene. In September, CPS referred Grace “for a home study” regarding placement for T, but ruled Grace out because she “did not meet the preliminary requirements for placement.” The respondent judge held a permanency hearing on October 6 and ordered ADES to file a motion to terminate the parents’ parental rights. Grace filed a second motion to intervene that day and included with her motion an Arizona Children Association’s adoptive home study that recommended Grace “be certified as acceptable to adopt.” The judge denied Grace’s motion to intervene, and she filed a petition for special action.

Reviewing for abuse of discretion, the Court first noted that Grace sought to intervene pursuant to Ariz. R. Civ. P. 24(b). When determining whether permissive intervention should be granted, the trial court “must first decide whether the statutory conditions promulgated in Rule 24(b)(1) or 24(b)(2) have been satisfied.” Relying on Bechtel v. Rose, 150 Ariz. 68, 722 P.2d 236 (1986) — which allowed a child’s grandparents to intervene in the dependency process because, inter alia, pursuant to statute, grandparents are among those eligible to become guardians of a child found dependent — the court of appeals found that “if a child’s grandparents’ interest . . . is sufficient for Rule 24(b)(2) purposes, so is [Grace’s]. She is T’s maternal aunt and T has been in her custody for most of his life.”

If the conditions of Rule 24(b) are met, then the juvenile court must determine whether the party opposing intervention has made a sufficient showing intervention is not in the child’s best interest. The Court noted the factors laid out in Bechtel relevant to this inquiry, and found that in his minute entry “the bulk of the respondent judge’s comments . . . refer not to the Bechtel factors . . . , but instead to whether T should be placed with [Grace] once Karen and Carl’s parental rights are terminated. A proper inquiry under Bechtel focuses not on the eventual outcome of the proceedings, but rather on the effect intervention may have on the proceedings.” Thus, the Court held, it was improper for the respondent judge to deny Grace’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.

Judge Brammer authored the opinion with Judge Eckerstrom concurring; Judge Espinosa dissented.