Lisa K. v. Arizona Department of Economic Security

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA JUN 26 2012
DIVISION TWO
COURT OF APPEALS
DIVISION TWO

LISA K., )
)
Appellant, ) 2 CA-JV 2012-0007
) DEPARTMENT B
v. )
) OPINION
ARIZONA DEPARTMENT OF ECONOMIC )
SECURITY and JULIAN N., )
)
Appellees. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. J192710

Honorable Gus Aragón, Judge

AFFIRMED

Sanders & Sanders, P.C.
By Ken Sanders Tucson
Attorneys for Appellant

Thomas C. Horne, Arizona Attorney General
By Claudia Acosta Collings Tucson
Attorneys for Appellee Arizona
Department of Economic Security

V Á S Q U E Z, 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 A.R.S. § 8-533(B)(3),

(B)(8)(c). The sole claim Lisa raises on appeal is that A.R.S. § 8-862 is unconstitutional

and resulted in a violation of her due process rights, requiring us to vacate the termination

order.2 For the reasons set forth below, we affirm.

1
Julian’s father, whose rights also were terminated, is not a party to this appeal.
2
The relevant portions of § 8-862, the statute that governs permanency hearings,
provide:

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
2

¶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. A.R.S. §§ 8-

533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005).

“On review, . . . we will accept the juvenile court’s findings of fact unless no reasonable

evidence supports those findings, and we will affirm a severance order unless it is clearly

erroneous.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205

(App. 2002). And, we view the evidence in the light most favorable to upholding the

court’s ruling. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, ¶ 20, 995 P.2d

682, 686 (2000).

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

initial hearing, the court shall set a date for the trial on
termination of parental rights within ninety days after the
permanency hearing.
3

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 the 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 court 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 § 8-862(D)(1),3 the court directed ADES

to file a motion to terminate Lisa’s parental rights to Julian within ten days. In its motion

to terminate, filed on July 28, 2011, ADES alleged as grounds for termination mental

illness or substance abuse and length of time in court-ordered out-of-home care. See § 8-

533(B)(3), (B)(8)(c). ADES also alleged that terminating Lisa’s parental rights was in

Julian’s best interests.

¶5 In August 2011, Lisa filed a special action petition in which she asked this

court to find § 8-862 unconstitutional insofar as it permits the same judge who finds the

3
Section 8-862(D)(1) states that if the juvenile court determines termination “is
clearly in the best interests of the child,” it shall order ADES to file a motion to
terminate.
4

case-plan goal of severance and adoption in a child’s best interests and directs ADES to

file a motion to terminate a parent’s rights, to then preside over the termination hearing.

We declined to accept special action jurisdiction on September 15, 2011. Lisa

subsequently filed a “Motion to Declare A.R.S. § 8-862 Unconstitutional” in the juvenile

court, which the court denied, finding the statute constitutional “as applied to the mother

in this case.” Lisa then filed a second special action petition in this court, challenging the

constitutionality of § 8-862. We declined to accept jurisdiction.

¶6 On November 1, 2011, Lisa filed a notice in the juvenile court, stating she

had filed 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 the 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 hearings

between November 2011 and January 2012, the judge granted ADES’s motion and

terminated Lisa’s parental rights to Julian.

4
Although Lisa did not object to Judge Aragón’s presiding over the case, or file a
motion for change of judge, see Rule 2, Ariz. R. P. Juv. Ct., we nonetheless conclude she
had preserved the issue before us on appeal by filing special actions in this court and a
motion challenging the statute’s constitutionality in the juvenile court.
5

Standing

¶7 On appeal, Lisa argues § 8-862 is facially unconstitutional in that it permits

the same judge who orders ADES to file the motion to terminate a parent’s rights to also

preside over the severance hearing. Although ADES argued in its answering brief that

Lisa has no standing to challenge the constitutionality of § 8-862, it conceded the issue at

oral argument. We likewise conclude Lisa has standing. See Church v. Rawson Drug &

Sundry Co., 173 Ariz. 342, 349, 842 P.2d 1355, 1362 (App. 1992) (initial question in

constitutional challenge to statute whether party has standing to assert claim); see also

State v. Herrera, 121 Ariz. 12, 15, 588 P.2d 305, 308 (1978) (“In order to possess

standing to assert a constitutional challenge, an individual must himself have suffered

some threatened or actual injury . . . .”) (citation omitted). However, the challenge to the

facial constitutionality of a statute requires only “an inquiry into whether the law itself is

unconstitutional, [and] not into whether the application of the law violates a particular

individual’s rights.” Hernandez v. Lynch, 216 Ariz. 469, ¶ 8, 167 P.3d 1264, 1267 (App.

2007). Because Lisa has argued that her due process rights to an impartial tribunal were

violated by operation of § 8-862, and that the statute has no valid application for those

similarly situated, she has standing to assert this claim without proof of an actual bias on

the part of the particular juvenile court judge.

Is § 8-862 Facially Unconstitutional?

¶8 Lisa contends § 8-862 is facially unconstitutional because it permits the

same judge who directed ADES to file the motion to terminate a parent’s rights to preside

over the hearing on that motion and decide whether to grant it. She argues the statute

6

thereby violates a parent’s right to have the case heard and decided by an impartial fact-

finder, resulting in a violation of the parent’s due process rights. Lisa asserts there are no

circumstances in which application of § 8-862(D) as written would be valid. Arizona

generally follows the standard set forth in United States v. Salerno, 481 U.S. 739, 745

(1987), which provides that to successfully challenge the facial validity of a statute, the

challenging party must demonstrate no circumstances exist under which the challenged

statute would be found valid. See Hernandez, 216 Ariz. 469, ¶ 8, 167 P.3d at 1267. “If

we find that there is no set of circumstances under which the statute can be found

constitutional, then it must be found unconstitutional.” State v. Seyrafi, 201 Ariz. 147,

n.4, 32 P.3d 430, 432 n.4 (App. 2001).

¶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.” Graville 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.

7

¶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. Ariz. Dep’t of Econ. Sec., 201 Ariz. 503, ¶ 24, 38 P.3d

41, 45 (App. 2002), citing Santosky v. Kramer, 455 U.S. 745, 753 (1982) (citation

omitted). “[W]hen the State acts to terminate this right, it must provide appropriate fair

procedures.” Mara M., 201 Ariz. 503, ¶ 24, 38 P.3d at 45. In addition, all litigants are

entitled to a decision rendered by an impartial tribunal. See Pavlik v. Chinle Unified Sch.

Dist. No. 24, 195 Ariz. 148, ¶ 12, 985 P.2d 633, 637 (App. 1999).

¶11 Although Lisa asserts a facial challenge to § 8-862, claiming there are no

circumstances under which it can be applied constitutionally, she has not cited any facts

specific to her case supporting her apparent claim that the juvenile court acted with the

bias she contends is inevitable under the statutory scheme. And, in the final paragraphs

of her opening brief, she asserts without factual support that she has suffered

fundamental, “prejudicial” error. “The question whether error is fundamental is ‘fact

intensive.’” Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, ¶ 25, 118 P.3d 37, 42

(App. 2005), quoting State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993); see

also State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) (“‘[O]pening

briefs must present significant arguments, supported by authority, setting forth an

8

appellant’s position on the issues raised. Failure to argue a claim usually constitutes

abandonment and waiver of that claim.’”), quoting State v. Carver, 160 Ariz. 167, 175,

771 P.2d 1382, 1390 (1989). Moreover, no such bias or prejudice is apparent from the

record before us. Lisa nonetheless asserts that, once the juvenile court ordered ADES to

file a motion for termination pursuant to § 8-862(D)(1), “it would be na[ï]ve to believe

that the Juvenile Court could or would fairly and impartially determine whether legal

grounds existed to support its determination.” Thus, she seems to be suggesting the court

presumptively is biased in such circumstances. She further asserts that, “[e]ven assuming

that the Juvenile Court could be as impartial as due process requires, the appearance of

partiality is too great to give the process appropriate legitimacy.”

¶12 The legislature enacted § 8-862 in 1997 to comply with the requirements of

the Federal Adoption and Safe Families Act, which include an “accelerate[d] process by

which parental rights are terminated so that children can be adopted more readily and at

an earlier age.”5 Mara M., 201 Ariz. 503, ¶¶ 16-17, 38 P.3d at 43-44; 1997 Ariz. Sess.

Laws, ch. 222, § 52; see also Rita J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 512, ¶ 5, 1

P.3d 155, 156-57 (App. 2000) (§ 8-862 adopted to comply with federal law to enable

timely permanency proceedings). As part of that process, the statute requires the juvenile

court to “hold a permanency hearing to determine the future permanent legal status of the

5
We decline to address Lisa’s argument that ADES has taken the position “that
parents’ due process rights be subjugated to expediency . . . [and] implicitly concedes,
therefore, that A.R.S. § 8-862 is not intended to protect the due process rights of parents.”
The record does not support this characterization of ADES’s argument. Nor does the
statute suggest timely permanency proceedings and affording parents the full due process
to which they are entitled are incompatible goals.
9

child” within a specific time period at which the court shall determine “the most

appropriate plan for the child.” § 8-862(A), (B)(1).

¶13 Although Lisa argues the statute is facially unconstitutional because there

are no circumstances under which it can be applied constitutionally, 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 § 8-

862(D)(1). And ADES, not the court, then was required to prove by clear and convincing

evidence the grounds it alleged in its motion for terminating Lisa’s rights. See §§ 8-

537(B), 8-862(D)(1). And, only after hearing the evidence presented at a full severance

hearing did the court determine ADES had sustained its burden of proving the grounds

for severance it had alleged in its motion. Similarly, only after hearing the evidence

presented, did the court determine ADES had proved by a preponderance of the evidence

that severance was in Julian’s best interests. See Mary Lou C. v. Ariz. Dep’t of Econ.

Sec., 207 Ariz. 43, ¶ 19, 83 P.3d 43, 50 (App. 2004). Finally, the court was required to

articulate in writing its decision and “the findings on which the order is based,” see

A.R.S. § 8-538(A), which further assured the court’s findings were supported by the

evidence presented.

10

¶14 We are not persuaded that the juvenile court generally, 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), citing State v. Haad, 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, ¶ 24, 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 terminate be filed.6 And courts addressing this procedure have

6
Like Arizona, Washington and Iowa require the court to order the department to
file a motion to terminate parental rights under certain circumstances, see Wash. Rev.
Code Ann. § 13.34.145(3) (at permanency planning hearing court “shall order the
department . . . to file a petition seeking termination of parental rights if . . . .”); Iowa
Code Ann. § 232.58(3)(c) (after permanency hearing, court shall “[d]irect the county
attorney . . . to institute proceedings to terminate the parent-child relationship”). In
addition, at least three other states, Arkansas, Montana, and Missouri, permit the court to
order the department to effectuate a permanency plan of adoption. See Ark. Code Ann.
§ 9-27-338(f) (after court determines adoption appropriate, “department shall file the
petition to terminate parental rights”); Mont. Code Ann. § 41-3-445(6)(c), 7, 8(c) (“court
11

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, ¶¶ 15, 34-37 (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 hearing); 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 (2001), In re D.G.C., 690 So. 2d 237 (La. 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,

440 S.E.2d 301, 303 (N.C. Ct. App. 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

may enter any other order that it determines to be in the best interests of the child,”
including an order directing department to take required steps to effectuate adoption);
Mo. Rev. Stat. § 211.447(1) (juvenile judge “may order the juvenile officer to . . . file[] a
petition” to terminate parental rights).
12

proceedings have concluded. Rita J., 196 Ariz. 512, ¶ 8, 1 P.3d at 158. And, as § 8-862

contemplates, the severance hearing is such a “further proceeding.” Although § 8-862

does not expressly require that the same judge preside over the dependency and

termination proceeding, if we were to prohibit the same judge from conducting all

proceedings related to a single family, as Lisa seems to suggest, the inevitable delays

resulting from the transition from one judge to another would “undermine the primary

purpose of . . . [§] 8-862: expediting the process of finding permanent placement for

children.” Rita J., 196 Ariz. 512, ¶ 10, 1 P.3d at 158; see, e.g., In re S.M.H., 160 S.W.3d

355, 359, 361, 363 (Mo. 2005) (request to change judge untimely and not in spirit of

Missouri’s “one-family/one-judge” unified family court system even though same judge

who ordered department to file petition to terminate also conducted termination hearing);

see also, e.g., In re M.L., 965 P.2d 551, 556-57 (Utah Ct. App. 1998) (because statutory

scheme allows same judge to preside over all juvenile protection proceedings, allegation

of judicial bias must be based on more than concern same judge presided over prior

proceedings with family).

¶17 We find instructive the reasoning of the Superior Court of Pennsylvania in

In re Quick, 559 A.2d 42, 46-47 (Pa. Super. Ct. 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,

7
The model set forth in Quick mirrors the “one-family, one-judge” standard
established in the Pima County Model Court Project to prevent cases involving children
from moving from judge to judge. See Stephanie Innes, Pima Judge Lands National
Honor for Juvenile Court Work, Tucson Citizen, June 3, 1999; see also Paul A. Williams,
A Unified Family Court for Missouri, 63 UMKC L. Rev. 383, 384 (Spring 1995).
13

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 direct

the filing of the motion pursuant to § 8-862 and to hear and decide it is the equivalent of

permitting a judge to order a criminal prosecution and preside over the criminal trial,

essentially permitting the judge to act as both prosecutor and trier of fact. There is no

support for Lisa’s assertion that, once the court determines termination is in the best

interests of the child and directs ADES to file the motion to terminate, the court “wants to

see a particular outcome.” To the contrary, as noted above, there are many procedural

protections to ensure termination is not a foregone conclusion once the court orders

ADES to file a motion to terminate. We find instructive the Supreme Court’s reasoning

in Withrow v. Larkin, 421 U.S. 35, 57-58 (1975): “[J]ust as there is no logical

14

inconsistency between a finding of probable cause and an acquittal in a criminal

proceeding,” a court’s finding there was no violation after an adversary hearing “would

not implicitly be admitting error in its prior finding of probable cause. Its position most

probably would merely reflect the benefit of a more complete view of the evidence

afforded by an adversary hearing.” Cf. Rouse v. Scottsdale Unified Sch. Dist. No. 48, 156

Ariz. 369, 374, 752 P.2d 22, 27 (App. 1987) (absent showing of actual bias or partiality,

due process not violated when school board assumed investigative/prosecutorial and

adjudicative roles).

Conclusion

¶19 Lisa has not established beyond a reasonable doubt that § 8-862 is facially

unconstitutional. And in the absence of any claim of actual bias or unfairness by the

juvenile court or any challenge as to the sufficiency of the evidence, the court’s order

terminating Lisa’s parental rights to Julian is affirmed.

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:

/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

15