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Jeff D. v. Department of Child Safety

Court of Appeals of Arizona, First Division

February 16, 2016

JEFF D., ERIKA D., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, L.W., Appellees

As Corrected April 15, 2016.

Appeal from the Superior Court in Maricopa County. No. JD510766. The Honorable Shellie F. Smith, Judge Pro Tempore.

Jeffrey M. Zurbriggen, PC, Phoenix, By Jeffrey M. Zurbriggen, Counsel for Appellants.

Arizona Attorney General's Office, Mesa, By Amanda L. Adams, Counsel for Appellee DCS.

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge John C. Gemmill joined.

OPINION

Page 110

JOHNSEN, Judge.

[¶1] This appeal presents questions relating to the change of physical custody of a child in the legal custody of the State from a foster

Page 111

family that wanted to adopt her to the child's great aunt and uncle, who also wanted to adopt her. We hold the superior court did not violate the foster family's due-process rights and did not abuse its discretion by granting the change.

FACTS AND PROCEDURAL BACKGROUND

[¶2] The Department of Child Safety (" DCS" ) filed a dependency petition in January 2013 alleging neglect by the parents of a one-year-old child (" Child" ).[1] At a permanency hearing in October 2014, the superior court changed the case plan to severance and adoption. On January 7, 2015, after two years in a different foster home, Child was placed with Jeff D. and Erika D. (" Foster Parents" ) as a potential adoptive placement.

[¶3] Five weeks later, Lane S. and Sherry S., Child's great aunt and uncle (" Great Aunt and Uncle" ), moved to intervene and sought physical custody of Child, saying they wanted to adopt her if her parents' rights were terminated. Great Aunt and Uncle live in Wisconsin and filed a report pursuant to the Interstate Compact on the Placement of Children supporting their request for custody. Child's mother and DCS supported placement with Great Aunt and Uncle, and DCS moved to have Child transferred to them. The court set oral argument on the motion to intervene and the motion to change custody. In the meantime, Foster Parents moved to intervene and filed an objection to DCS's motion to change custody. Foster Parents also submitted reports for the court's consideration and filed a list of witnesses and exhibits.

[¶4] On April 10, 2015, the court heard argument from Child's guardian ad litem, DCS, the birth parents, Great Aunt and Uncle and Foster Parents. The court granted both motions to intervene, then found that placement with Great Aunt and Uncle would be in Child's best interests. The court first noted that it had considered all of the information presented, as well as Arizona Revised Statutes (" A.R.S." ) section 8-514(B) (2016), which establishes a statutory preference for " kinship" placements, including placement with " another member of the child's extended family[.]" [2] The court then found that although each proposed placement could provide Child a loving, safe and stable home, the statutory preference weighed in favor of placement with Great Aunt and Uncle:

The Court finds that the statutory preferences are there for a reason, to give guidance to the Court in terms of placement preferences and in this case the Court finds that the placement preference would be with the biological relatives of the mother and that's [Great Aunt and Uncle].

[¶5] Foster Parents timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, A.R.S. § § 8-235(A) (2016), 12-2101(A)(1) (2016) and Rule 103(A) of the ...


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