Maria G. v. Dcs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARIA G.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.R., K.R., K.R., A.R.,
Appellees.

No. 1 CA-JV 21-0379
FILED 6-28-2022

Appeal from the Superior Court in Maricopa County
No. JD34729
The Honorable Christopher Whitten, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By James William Rappaport
Counsel for Appellee
 MARIA G. v. DCS et al.
Opinion of the Court

OPINION

Judge James B. Morse Jr. delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

M O R S E, Judge:

¶1 Maria G. ("Grandmother") appeals the juvenile court's order
revoking her guardianship over four of her grandchildren. We hold that
the preponderance-of-the-evidence standard applies to the best interest
inquiry in a guardianship revocation. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Grandmother's daughter, Maria R. ("Mother"), is the
biological parent of seven children, born between 2008 and 2020.1 In 2017,
the Department of Child Safety ("DCS") removed Anya, Ken, Kima, and
Arin and placed them with Grandmother. The superior court then
appointed Grandmother the permanent guardian for those children. When
Charles and Stanley were born in 2018 and 2019, DCS also placed them with
Grandmother, but she was not appointed their guardian. A seventh child
was born in 2020 and placed with a foster family.

¶3 In 2020, DCS received reports that Grandmother could not
care for the children properly. She failed to take Charles to necessary
medical appointments. She did not obtain treatment when the children
contracted lice and eventually suffered infections and skin damage.
Grandmother left the children alone with Mother, in violation of the safety
plan, and delegated parental responsibilities to eleven-year-old Anya, who
began suffering mental-health problems and engaged in self-harm. DCS
also learned that Grandmother had suffered strokes that impaired her
ability to care for the children.

¶4 DCS removed the children from Grandmother's custody and
filed a dependency petition, alleging neglect. Grandmother entered a no
contest plea, and the children were adjudicated dependent as to
Grandmother. DCS provided Grandmother services, including a
psychological evaluation, two parent-aide referrals, and supervised

1 We refer to all the children using pseudonyms.

2
 MARIA G. v. DCS et al.
Opinion of the Court

visitation. During the dependency, Grandmother suffered another stroke
and required hospitalization. Although Grandmother participated in
services, DCS moved to revoke the permanent guardianship in May 2021.

¶5 The juvenile court held a revocation hearing in 2021 and
heard testimony from Dr. Daniel Juliano and a DCS supervisor. The
juvenile court revoked Grandmother's guardianship.2 Grandmother timely
appealed. We have jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1),
and 12-2101(A)(1).

DISCUSSION

¶6 To revoke a permanent guardianship, the moving party must
prove, by clear and convincing evidence, a significant change of
circumstances from the time the guardianship was established. A.R.S. § 8-
873(C). Revoking the guardianship must also be in the children's best
interest. Id.

I. Significant Change of Circumstances.

¶7 Grandmother argues that insufficient evidence supported the
juvenile court's finding of a significant change of circumstances to justify
revoking the permanent guardianship. See A.R.S. § 8-873(A). The court
found Grandmother's inability to properly care for the children a significant
change of circumstances. See A.R.S. § 8-873(A)(2) ("[A] significant change
of circumstances, include[s]: . . . The child's permanent guardian is unable
to properly care for the child.").

¶8 This Court does not reweigh conflicting evidence or
reevaluate the credibility of witnesses on appeal. Alma S. v. Dep't of Child
Safety, 245 Ariz. 146, 151-52, ¶¶ 18-19 (2018). Instead, we view the evidence
and reasonable inferences in the light most favorable to affirming the
juvenile court's order, id. at 151, ¶ 18, and will affirm its findings "unless no
reasonable evidence supports those findings," Jennifer B. v. Ariz. Dep't of
Econ. Sec., 189 Ariz. 553, 555 (App. 1997).

¶9 The juvenile court's findings are supported by clear and
convincing evidence. Grandmother underwent a psychological exam with
Dr. Juliano, who opined she has borderline intellectual functioning, low
reading comprehension, ADHD, and a hearing impairment. He opined

2 The court also terminated the parental rights of Mother, and the
children's fathers, to all the children except Anya (whose case plan is
independent living). They are not parties to this appeal.

3
 MARIA G. v. DCS et al.
Opinion of the Court

Grandmother failed "to grasp the severity of the issues and her own
limitations," and gave a poor prognosis for her ability to care for the four
older children. The court expressed concern about Grandmother's medical
challenges and the effect those challenges had on her ability to parent the
children, her failure to address the children's medical issues, and her
reliance on inappropriate alternate caregivers such as Anya and Mother.
See supra ¶ 3. Finally, the court noted Anya's unwillingness to return to
Grandmother's care. See A.R.S. § 8-873(C)(1) (requiring courts to consider
an older child's position on revoking guardianship); Jennifer B., 189 Ariz. at
557 (affirming finding of change in circumstances and noting child
"preferred to stay in his foster care placement"). The court did not err.

II. Best Interest.

¶10 The juvenile court "may revoke the order granting permanent
guardianship of a child who previously has been adjudicated a dependent
child if the party petitioning for revocation proves a change of
circumstances by clear and convincing evidence and the revocation is in the
child's best interest." A.R.S. § 8-873(C). Grandmother argues the court
erred because the clear-and-convincing-evidence standard applies to the
best interest inquiry.3 DCS disagrees.

¶11 We interpret statutes de novo, with the objective "to give
effect to the legislature's intent." Kent K. v. Bobby M., 210 Ariz. 279, 283, ¶¶
8, 14 & n.6 (2005). "The best and most reliable indicator of intent is the
language of the statute." In re Estate of Olsen, 251 Ariz. 209, 211, ¶ 8 (App.
2021). "We apply the plain wording of the statute when it is clear and
unambiguous." Albert L. v. Dep't of Child Safety, --- Ariz. ---, ---, 2022 WL
1146405, at *2, ¶ 13 (App. Apr. 19, 2022). We also "seek to harmonize and
attain consistency among related statutory provisions in the context of the
overall statutory scheme." Andrew R. v. Ariz. Dep't of Econ. Sec., 223 Ariz.
453, 457, ¶ 16 (App. 2010).

¶12 The statutory analysis in Kent K. is persuasive. There, our
supreme court concluded the clear-and-convincing burden of proof set
forth in A.R.S. § 8-537 did not apply to the best interest inquiry required by
A.R.S. § 8-533. Kent K., 210 Ariz. at 284, ¶ 22. The court found that:

the specific reference only to grounds for termination in
section 8-537, read together with the distinction in section 8–

3 Grandmother does not assert that DCS failed to meet the
preponderance-of-evidence burden.

4
 MARIA G. v. DCS et al.
Opinion of the Court

533 between statutory grounds for termination and the best
interests inquiry, evinces an intent on the part of the
legislature to apply the standard of proof expressed in section
8-537 only to the grounds for termination and not to the
consideration of best interests.

Id. at 283, ¶ 16. Accordingly, applying the preponderance standard to the
best interest inquiry in guardianship revocations is consistent with the best
interest inquiry in parental-rights-termination proceedings. See id. at 288,
¶ 41 (holding "because the best interests inquiry requires a delicate
balancing of the child's interests, along with the parens patriae interest of the
state, against the interests of an unfit parent, we hold that the
preponderance of the evidence standard adequately allocates the risk of
error between these competing interests"); see also Jennifer B., 189 Ariz. at
557 (applying best interest analysis from termination proceedings in a
guardianship revocation).

¶13 Similarly, the phrase "by clear and convincing evidence" in
A.R.S. § 8-873(C) modifies only the preceding phrase "change of
circumstances," not the subsequent phrase "child's best interest." Had the
legislature intended to apply the clear and convincing evidence standard to
the best interest finding, it could have done so, see State v. Hood, 251 Ariz.
57, 60, ¶ 9 (App. 2021), "[b]ut that is not the statute the legislature chose to
write," Abrams Airborne Mfg., Inc. v. Ariz. Dep't of Revenue, 185 Ariz. 589, 591
(App. 1996). At a minimum, it would be odd to require a higher standard
of proof for the best interest inquiry to revoke a guardianship than to
terminate parental rights, and Grandmother asserts no rationale to support
such an inconsistent construction. See Andrew R., 223 Ariz. at 457, ¶ 16.

¶14 Thus, we hold that the preponderance-of-the-evidence
standard applies to the best interest inquiry in permanent guardianship
revocations under A.R.S. § 8-873.

CONCLUSION

¶15 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: JT

5