In re the Appeal in Cochise County Juvenile Dependency Action Nos. SV89-00023 and DP8900018

793 P.2d 566, 164 Ariz. 413, 61 Ariz. Adv. Rep. 72, 1990 Ariz. App. LEXIS 206
CourtCourt of Appeals of Arizona
DecidedMay 31, 1990
DocketNo. 2 CA-JV 90-0005
StatusPublished
Cited by1 cases

This text of 793 P.2d 566 (In re the Appeal in Cochise County Juvenile Dependency Action Nos. SV89-00023 and DP8900018) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Appeal in Cochise County Juvenile Dependency Action Nos. SV89-00023 and DP8900018, 793 P.2d 566, 164 Ariz. 413, 61 Ariz. Adv. Rep. 72, 1990 Ariz. App. LEXIS 206 (Ark. Ct. App. 1990).

Opinion

[414]*414OPINION

FERNANDEZ, Chief Judge.

o

The 14-year-old female minor appeals from the juvenile court’s acceptance, over her objection, of a stipulation between her adoptive parents and the Arizona Department of Economic Security (DES) permitting the parents to relinquish their parental rights. We vacate the court’s order accepting the stipulation.

FACTS AND PROCEDURAL HISTORY

The parents adopted the minor in August 1986 when she was ten years old. After she ran away from home in March 1989, the parents refused to allow her to return and voluntarily placed her at the Cochise County Children’s Center. The child was declared a temporary ward of the state and was adjudicated dependent on May 15, 1989, after the parents refused to attempt to reunify the family. The parents filed a petition on May 2 to terminate their parental rights.

On June 9, the minor moved to intervene in the severance, to consolidate the dependency and severance, and to have counsel appointed to represent her in the severance. The motion to consolidate was granted, and the court found the motion to appoint counsel moot because of the consolidation. The minor then filed a response to the severance petition, arguing that none of the statutory grounds for severance had been established, that severance was not in her best interests, and that in the event severance was ordered, the court should determine the appropriate amount of child support.

At the hearing on the petition, DES and the parents submitted a stipulation providing that the parents would pay DES $294.00 per month for six months “as and for support payments for the child”; the parents would be available for separation counseling with the minor, with DES to be responsible for its cost; and DES would accept the parents’ relinquishment of rights “at such time as the [parents] have made a good faith effort to fulfill the terms of this agreement.” DES’s attorneys avowed that the agreement was in the minor’s best interests. The juvenile court accepted the stipulation over the minor’s vigorous objection, executed an order in accordance with the stipulation, and set a three-month review hearing to determine whether DES had accepted the relinquishment.

This court has jurisdiction of the appeal because the signed and filed order disposing of all issues is a final and appeal-able order, see In re Yavapai County Juvenile Action No. J-8545, 140 Ariz. 10, 680 P.2d 146 (1984), and the minor is an aggrieved party. A.R.S. § 8-236(A).

On appeal, the minor argues that as a party to the severance proceeding, she was entitled to full participation and that the juvenile court’s acceptance of the stipulation over her objection deprived her of that participation. She argues that the stipulation resulted in severance without a hearing and avoided the requirement that statutory grounds for severance be established by clear and convincing evidence. Moreover, she claims that the court’s failure to hear evidence and to enter findings on her best interests violated her due process rights and deprived her of her right to claim support from her parents. Finally, she points out that the dependency and severance proceedings were “on a collision course” from the beginning and, because of the juvenile court’s acceptance of the stipulation, no efforts were or will be made to reunite the family.

MINOR’S RIGHTS IN A SEVERANCE

The minor has the right to participate in a severance proceeding involving her. Due process requires the appointment of independent counsel for the minor in some cases, particularly “where there are conflicts of interest such that a child’s best interests are not fully explored, advocated, or included in the record.” Yavapai County Juvenile No. J-8545, 140 Ariz. at 16, 680 P.2d at 152. In this case, because the positions of DES and the parents were identical and, for all practical purposes, adverse to the child’s, meaningful participation by the minor’s counsel was crucial, [415]*415including an opportunity to present evidence as to the child’s best interests.

EFFECT OF STIPULATION

DES argues that it agreed to accept the parents’ consent to adoption pursuant to A.R.S. § 8-106 if the parents fulfilled the obligations of the stipulation and dismissed the severance petition, which it claims the juvenile court did. The record does not reflect that the petition was dismissed, contingently or otherwise. In any case, the court’s acceptance of the stipulation resulted, at the very least, in a de facto termination, committing the child to dependency and foster care until either her eighteenth birthday or her adoption by another family, an unlikely event. Indeed, counsel for the parents stated at the hear-. ing that the reason they would dismiss the petition is because the state’s acceptance of their relinquishment would allow them to “technically” accomplish a severance.

The effect of the acceptance of the stipulation was twofold. First, the parents were able to circumvent the statutory requirements of A.R.S. §§ 8-533 through 8-538, which deprived the minor of an opportunity to present evidence that severance would not be in her best interests. Second, it rendered the child per se dependent and ensured that no efforts would be made to reunify the family.

Although voluntary relinquishment of parental rights to an agency or consent to an adoption can be one ground for severance, A.R.S. § 8-533(B)(5), the relinquishment or consent must be attached to the petition at the time it is filed, A.R.S. § 8-534(B). Moreover, a hearing is required, no matter which statutory ground is the basis of the petition. See A.R.S. §§ 8-535 and 8-537. Finally, an order granting or denying the termination must be entered. A.R.S. § 8-538. If severance is granted, the order must state the findings on which it is based. Id. The following historical note to A.R.S. § 8-531 reveals a legislative intent that the judicial process not be circumvented as it was in this case:

The purpose of this act is to provide for voluntary and involuntary severance of the parent-child relationship and for substitution of parental care and supervision by judicial process which will safeguard the rights and interests of all parties concerned and promote their welfare and that of the state. Implicit in this act is the philosophy that, wherever possible, family life should be strengthened and preserved and that the issue of serving the parent-child relationship is of such vital importance as to

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Related

Matter of Cochise County Juv. Dep. Action
793 P.2d 566 (Court of Appeals of Arizona, 1990)

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Bluebook (online)
793 P.2d 566, 164 Ariz. 413, 61 Ariz. Adv. Rep. 72, 1990 Ariz. App. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-in-cochise-county-juvenile-dependency-action-nos-arizctapp-1990.