Adrian E. v. Department of Child Safety

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

ADRIAN E.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY,
Appellee.

L.E. AND I.E.,
Appellants,

v.

DEPARTMENT OF CHILD SAFETY,
Appellee.

Nos. 2 CA-JV 2015-0064 and 2 CA-JV 2015-0074 (Consolidated)
Filed April 5, 2016

Appeals from the Superior Court in Pima County
Nos. S20140305, JD196618, and D20120267 (Consolidated)
The Honorable Jane Butler, Judge Pro Tempore

REVERSED

COUNSEL

Jacqueline Rohr, Tucson
Counsel for Appellant Adrian E.
 ADRIAN E. v. DEP’T OF CHILD SAFETY
Opinion of the Court

Pima County Office of Children’s Counsel, Tucson
By Sarah Richelson
Counsel for Appellants L.E. and I.E.

Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Miller and Judge Espinosa concurred.

V Á S Q U E Z, Presiding Judge:

¶1 In their consolidated appeals, Adrian E. and his minor
children, L.E. and I.E., challenge the juvenile court’s termination of
Adrian’s parental rights pursuant to A.R.S. § 8-533(B)(11). They
argue that subsection of the statute does not apply to a parent like
Adrian, who was only granted the right to supervised visitation in
the prior dependency and related family-court proceedings, whereas
the children’s mother, from whose home the children were removed,
had been granted primary physical custody and “[s]ole legal
decision-making” authority. A.R.S. § 25-401(6). Appellants also
contend the court abused its discretion in finding termination of
Adrian’s rights was in the children’s best interests. The Department
of Child Safety (DCS) has conceded Adrian’s rights could not be
terminated pursuant to § 8-533(B)(11). We agree and therefore
reverse the court’s order.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to
sustaining the juvenile court’s ruling. See Manuel M. v. Ariz. Dep’t of
Econ. Sec., 218 Ariz. 205, ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
Adrian and Crystal W., the mother of L.E. and I.E., born in 2007 and

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2009 respectively, were divorced in August 2010. 1 Crystal was
awarded sole custody of the children, subject to Adrian’s reasonable
parenting time. But in October 2010, Crystal brought the children to
Adrian at his place of employment and demanded that he take
them. They were wearing nothing but diapers, had no car seats, and
I.E. had scratches on his face and back. The children remained with
Adrian for about two months, but DCS removed them from his care
in December 2010 and placed them in foster care after L.E. reported
he had hit her with a belt on her stomach and back.

¶3 The children were adjudicated dependent as to Adrian
in January 2011, after he admitted allegations in an amended
dependency petition, and as to Crystal a few weeks later, after she
failed to appear for the dependency hearing. The parents were
provided a variety of services designed to reunify the family, and, in
April 2012, the children were returned to Adrian’s care. But the
children were removed again in May 2012 and placed in foster care
after L.E. reported Adrian had pulled her ear and I.E. stated Adrian
had hit L.E. on the leg. In October 2012, DCS filed a motion to
terminate the parents’ rights on numerous grounds. On the last day
of a five-day severance trial, the juvenile court denied the motion as
to Crystal, and, then in a June 2013 under-advisement ruling, it
denied the motion as to Adrian.

¶4 During the year that preceded the juvenile court’s
denial of the motion to sever, Crystal complied with the case plan,
and, in May 2013, the children were placed in her care. Indeed, in its
June 2013 under-advisement ruling, the court noted that the children
had been “returned to the physical custody of their mother” and
found that, “[b]ecause the children are permanently placed with
their mother, . . . [there is] no benefit to terminating Father’s parental
rights.” The court consolidated the dependency proceeding with the

1 Crystal also appealed the termination of her rights.
However, after appointed counsel filed an affidavit in compliance
with Rule 106(G), Ariz. R. P. Juv. Ct., this court dismissed the
appeal. Crystal W. v. Dep’t of Child Safety, No. 2 CA-JV 2015-0072
(order filed July 23, 2015).

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family-court action so that Adrian and Crystal could participate in
mediation.

¶5 The parents entered into an updated parenting
agreement in October 2013, which the family court adopted in its
order in the family-law proceeding. The agreement and,
consequently, the court’s order utilized principles and language
consistent with 2012 amendments to title 25 that eliminated the
terms “legal custody” and “visitation” and replaced them with
“legal decision-making,” § 25-401(3), and “parenting time,” § 25-
401(5). See 2012 Ariz. Sess. Laws, ch. 309, §§ 4-5. Crystal was given
“sole legal decision-making” authority over the children. The court
granted Adrian parenting time as provided in the agreement, which
gave him supervised parenting time at his expense and specified
that the children were to live “primarily” with Crystal. Based on the
parties’ agreement, the related order in the family-court matter, and
Crystal’s compliance with the case plan, the court dismissed the
dependency proceeding on October 28.

¶6 In June 2014, L.E. and I.E. were removed from Crystal’s
care based on reports that she was neglecting and abusing them and
that she was abusing alcohol and using drugs in front of them. DCS
filed a dependency petition, alleging as to Adrian that he had failed
to protect the children from abuse or neglect by Crystal. It further
alleged Adrian had not exercised “his court-awarded supervised
parenting time and was out of touch with the children,” having
failed to see them in five or six months. Additionally, DCS alleged
Adrian had a “life-long” history of mental-health issues. A few
months later, in August 2014, DCS filed a petition to terminate
Crystal’s and Adrian’s parental rights to the children on one ground:
prior removal under § 8-533(B)(11). The juvenile court consolidated
the severance and dependency proceedings.

¶7 Following contested dependency hearings in September
and October 2014, the juvenile court adjudicated the children
dependent as to both parents. After contested severance hearings
that began in November, the court granted DCS’s petition in March
2015 and terminated the parents’ rights pursuant to § 8-533(B)(11).
Adrian and the children separately appealed; we granted the request
to consolidate the appeals.

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Opinion of the Court

Discussion

¶8 This case raises issues regarding the interpretation and
application of § 8-533(B)(11) and related statutes, which are
questions of law that we review de novo. See In re John M., 201 Ariz.
424, ¶ 7, 36 P.3d 772, 774 (App. 2001); see also Manuel M., 218 Ariz.
205, ¶ 18, 181 P.3d at 1131; Adrian E. v. Ariz. Dep’t of Econ. Sec., 215
Ariz. 96, ¶ 9, 158 P.3d 225, 228 (App. 2007). When interpreting
statutes, this court must effectuate the legislature’s intent and,
because the language in a statute is the best reflection of that intent,
we apply the statute as written unless its terms are not clear. See
Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, ¶ 8, 117 P.3d 795, 797
(App. 2005). “When a statute is clear and unambiguous, we apply
its plain language and need not engage in any other means of
statutory interpretation.” Kent K. v. Bobby M., 210 Ariz. 279, ¶ 14,
110 P.3d 1013, 1017 (2005).

¶9 To the extent a statute’s language is ambiguous, “we
attempt to determine the legislative intent by interpreting the statute
as a whole, considering its place in the relevant statutory scheme, as
well as the statute’s ‘subject matter, historical background, effects
and consequences, and spirit and purpose.’” E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, ¶ 10, 344 P.3d 842, 845 (App. 2015), quoting State
ex rel. Montgomery v. Harris, 234 Ariz. 343, ¶ 13, 322 P.3d 160, 162
(2014). We give the words of a statute “‘their natural, obvious, and
ordinary meaning.’” Simpson v. Owens, 207 Ariz. 261, ¶ 33, 85 P.3d
478, 489 (App. 2004), quoting Arpaio v. Steinle, 201 Ariz. 353, ¶ 5, 35
P.3d 114, 116 (App. 2001). “We also read . . . statutes in conjunction
with each other and harmonize them whenever possible.” Ruben M.
v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, ¶ 20, 282 P.3d 437, 441 (App.
2012). Finally, we will not interpret a statute in a manner that leads
to an absurd result, even when the terms of the statute are clear and
unambiguous. See E.R., 237 Ariz. 56, ¶ 10, 344 P.3d at 845.

¶10 Section 8-533(B)(11) provides that the juvenile court
may terminate parental rights when all of the following are true:

(a) The child was cared for in an out-
of-home placement pursuant to court
order.

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(b) The agency responsible for the
care of the child made diligent efforts to
provide appropriate reunification services.

(c) The child, pursuant to court
order, was returned to the legal custody of
the parent from whom the child had been
removed.

(d) Within eighteen months after the
child was returned, pursuant to court
order, the child was removed from that
parent’s legal custody, the child is being
cared for in an out-of-home placement
under the supervision of the juvenile court,
the division or a licensed child welfare
agency and the parent is currently unable
to discharge parental responsibilities.

¶11 Section 8-531(5), A.R.S., defines the terms found in § 8-
533 as follows:

“Custody” or “legal custody” means
a status embodying all of the following
rights and responsibilities:

(a) The right to have physical
possession of the child.

(b) The right and the duty to protect,
train and discipline the child.

(c) The responsibility to provide the
child with adequate food, clothing, shelter,
education and medical care, provided that
such rights and responsibilities shall be
exercised subject to the powers, rights,
duties and responsibilities of the guardian
of the person and subject to the residual
parental rights and responsibilities if they

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Opinion of the Court

have not been terminated by judicial
decree.

¶12 In its order terminating Adrian’s parental rights, the
juvenile court reviewed the history of the family’s involvement with
DCS. The court found that DCS had “made diligent efforts to
provide appropriate reunification services,” which it specified, and
that, after the parties entered into an agreement, “the status of
dependency no longer existed” and it “return[ed] legal and physical
custody to [the] Mother.” The court further found that the children
were “removed . . . from [the] Mother eight months later.” The court
terminated both parents’ rights based on these findings and the
additional finding that termination of their rights was in the
children’s best interests.

¶13 Adrian and the children argue the children were not
returned to his legal custody for purposes of § 8-533(B)(11) when the
juvenile court dismissed the dependency in October 2013, nor were
they therefore removed from Adrian’s custody eight months later.2
Adrian only had the right to supervised parenting time, which he
was not exercising. Insisting the terms of § 8-533(B)(11) are clear,
appellants assert “sole legal decision-making” is “legal custody” for
purposes of § 8-533(B)(11) and only Crystal had legal custody.

¶14 DCS argued in its answering brief on appeal, however,
that based on the definition in § 8-531(5), “legal custody” is not
synonymous with “legal decision-making,” defined in § 25-401(3),
and parenting time, defined in § 25-401(5). DCS asserted the
legislature intended that “legal decision-making” in the family-law
context and “legal custody” for purposes of dependency and
severance proceedings have different meanings. DCS reasoned this
intent can be inferred from the fact that when the legislature
amended title 25, it did not alter the language in title 8. DCS argued
this intent can also be inferred from the fact that the legislature did

2The children acknowledge in their opening brief that they did
not make this argument before the juvenile court. But, as they point
out, Adrian raised it, thereby preserving the argument for appellate
review.

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not include dependency and severance proceedings among the
circumstances it specified in § 25-401(3) in which “legal decision-
making” means “legal custody.”3 But in the notice of concession of
error DCS subsequently filed, it conceded the definition of legal
custody in § 8-531(5) is not broad enough to include a parent such as
Adrian, who was only granted supervised parenting time.

¶15 We agree with DCS’s suggestion that § 8-533(B)(11) and
§ 8-531(5) are reasonably susceptible to different interpretations,
particularly when considered together with the 2012 changes to
title 25 and the corresponding language the parties used in their
mediated agreement. See § 25-401(3); 2012 Ariz. Sess. Laws, ch. 309,
§§ 4-5; 1997 Ariz. Sess. Laws, ch. 222, § 49. Section 8-533(B)(11) and
§ 8-531(5) clearly were intended to apply to a parent like Crystal,
who had full-time physical custody and sole decision-making
authority, even assuming the terms “custody” or “legal custody” are
not synonymous with the related terms under title 25. 4 “‘Sole legal
decision-making’ [authority] means one parent has the legal right
and responsibility to make major decisions for a child.” § 25-401(6).
Crystal also had “the legal right and responsibility to make all
nonemergency legal decisions for a child including those regarding
education, health care, religious training and personal care
decisions.” § 25-401(3).

¶16 Additionally, Crystal’s right to physical possession of
the children was unrestricted, subject only to Adrian’s highly
restricted right to supervised parenting time for a total of four hours
during the week, two hours each on Mondays and Tuesdays, “or on
weekends if a professional supervisor [could be] obtained.” Crystal

3 After defining “legal decision-making,” the statute states
further: “For the purposes of interpreting or applying any
international treaty, federal law, a uniform code or the statutes of
other jurisdictions of the United States, legal decision-making means
legal custody.” § 25-401(3).
4Although Crystal is not a party to this appeal, we discuss the
statutes as they apply to her because the discussion illustrates and
supports our analysis regarding Adrian.

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clearly had the right to “physical possession of the child[ren],” the
right and the obligation to protect the children as well as to train and
discipline them, and the responsibility to care for them by providing
them with “adequate food, clothing, shelter, education and medical
care.” § 8-531(5).

¶17 DCS concedes Adrian’s right to supervised parenting
time cannot reasonably be construed to be the right to physical
possession of his children for purposes of § 8-531(5). His right to
“possession” was significantly restricted and existed only for the
limited, designated hours, and when in the presence of a designated
or otherwise accepted individual, at his expense. § 8-531(5)(a). Had
Crystal and Adrian been given “[j]oint legal decision-making,” they
would have shared in the decisions pertaining to the children and
“neither parent’s rights or responsibilities” would have been
“superior except with respect to specified decisions as set forth by
the court or the parents in the final judgment or order.” § 25-401(2).
Perhaps then both could be viewed as having custody or legal
custody as contemplated by § 8-533(B)(11). But the children were
clearly placed with Crystal, and it would be unreasonable to
interpret the statute to mean the children were also placed in
Adrian’s custody under these circumstances.

¶18 We agree with appellants that, based on its language
and structure, § 8-533(B)(11) does not apply to Adrian. Rather, § 8-
533(B)(11) was intended to serve as a basis for terminating the rights
of the parent to whom a child had been returned during an initial
dependency proceeding and from whom the child was again
removed because of that parent’s conduct. By using the term “that
parent” in § 8-533(B)(11)(d), the legislature distinguished the parent
whose rights may be terminated under the provision from another
parent, one to whom the provision may not apply. The parent to
whom a child previously was returned is therefore the same parent
from whose “legal custody” the child has been removed a second
time. Crystal is “that parent,” not Adrian. There may be
circumstances in which parents are a single unit, such as when they
are living together in one household with the children. But that is
not this case.

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¶19 In addition, the legislature’s use of the term “the
parent” later in subsection (d) refers to “the parent for whom the
ground exists.” “[T]hat parent” and “the parent” are references to
the same parent, the one to whom the child was returned and from
whom the child was again removed. Whether we view the language
of the statute in this regard as plain and clear or whether we find it
ambiguous, interpreting this subsection to permit a court to
terminate the rights of a father like Adrian, who had limited access
to his children, based solely on the conduct of the other parent is an
“absurd result[].” E.R., 237 Ariz. 56, ¶ 10, 344 P.3d at 845.

¶20 Here, the juvenile court did not grant the severance
petition as to Adrian based on findings related to him. Rather, it
found Crystal had “obtained legal custody” in October 2013 and the
children were “removed . . . from [her] eight months later.”
Removal of the children from Crystal’s custody could not, therefore,
be viewed as removal from Adrian’s custody as well because as we
previously concluded, he did not have “legal custody” for purposes
of § 8-533(B)(11). The court did not err in finding Crystal had “legal
custody” for purposes of § 8-533(B)(11). It did err, however, in
concluding the findings as to Crystal were a sufficient basis for
terminating Adrian’s rights.

¶21 We recognize the public policy behind the 2010 and
2012 changes to title 25, which are reflected in the mediated
agreement, was to encourage parents to work cooperatively, to share
in the decision-making with respect to their children, and to spend
“‘substantial, frequent, meaningful and continuing parenting time’”
with both parents. Baker v. Meyer, 237 Ariz. 112, ¶ 12, 346 P.3d 998,
1003 (App. 2015), quoting A.R.S. § 25-103(B); see also 2012 Ariz. Sess.
Laws, ch. 309, §§ 5, 7-8; 2010 Ariz. Sess. Laws, ch. 221, § 1. We also
acknowledge the legislature added § 8-533(B)(11) as part of its
efforts to expedite termination proceedings so that children will
“spend less time in foster care” and be placed in “permanent homes
sooner.” Senate Fact Sheet, H.B. 2255, 43rd Leg., 1st Reg. Sess. (Ariz.
May 15, 1997). But we do not believe the legislature intended to
permit courts to terminate one parent’s rights on a ground that does
not apply to that parent but instead applies to the other parent and
relates to that other parent’s conduct. We therefore decline to

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interpret the severance statute to permit Adrian’s rights to be
terminated based on Crystal’s status and her conduct. Such an
interpretation would violate a parent’s due process rights. See Frank
R. v. Mother Goose Adoptions, No. 2 CA-JV 2015-0120, ¶¶ 26-27, 2016
WL 531652 (Ariz. Ct. App. Feb. 10, 2016). It is our obligation to
attempt to construe and apply statutes in a manner that would
render them constitutional. Blake v. Schwartz, 202 Ariz. 120, ¶ 27, 42
P.3d 6, 12 (App. 2002). We have done so here.

Disposition

¶22 Because we conclude the juvenile court erred in
terminating Adrian’s parental rights pursuant to § 8-533(B)(11), we
need not address appellants’ argument in their separate briefs that
the court abused its discretion by finding termination of Adrian’s
parental rights was in the children’s best interests. For the reasons
stated, we reverse the court’s order.

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