                               IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
ALEXANDER M., DOMINIC M., DANIEL M., NATALIE M. AND SAVANNAH M.,
                           Petitioners,

                                  v.

THE HONORABLE LISA ABRAMS, COMMISSIONER OF THE SUPERIOR COURT
     OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
                           Respondent,

                                 and

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, YVONNE M. AND ALEX M.
                      Real Parties in Interest.

                         No. CV-13-0169-PR
                         Filed July 14, 2014

        Special Action from the Superior Court in Pima County
             The Honorable Lisa Abrams, Commissioner
                             No. J188643
                              VACATED

             Order of the Court of Appeals, Division Two
                          Filed May 7, 2013
                             VACATED

COUNSEL:

Nicholas Knauer (argued), Pima County Office of Children’s Counsel,
Tucson, for Children

Thomas C. Horne, Attorney General, Phoenix, Laura J. Huff (argued),
Assistant Attorney General, Tucson, for Arizona Department of Economic
Security

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE BERCH, and
JUSTICE TIMMER joined.
             ALEXANDER M. et al v. ABRAMS (ADES et al.)
                      Opinion of the Court

JUSTICE BRUTINEL, opinion of the Court:

¶1             We are asked to decide whether a juvenile court can delegate
discretion to the Arizona Department of Economic Security (“ADES”) to
determine when it serves a dependent child’s best interests to be returned
to the child’s parent or guardian. We conclude that the juvenile court may
not delegate its responsibility to independently determine whether
reunification is in the child’s best interests.

                            I. BACKGROUND

¶2            In June 2012, the juvenile court adjudicated Alexander M.,
Dominic M., Daniel M., Nathanial M., and Savannah M. (the “Children”)
dependent as to both of their parents. The court ordered a case plan of
family reunification but directed that the Children remain in out-of-home
care. The juvenile court vested “the minors’ legal care, custody, and
control” in ADES.

¶3             In April 2013, the juvenile court held a combined permanency
and dependency review hearing. At the hearing, ADES sought discretion,
if the parents complied with the case plan, to reunify the Children with their
parents when secure housing and in-home services were in place. The
Children objected, arguing that before they could be reunified with their
parents, A.R.S. § 8-861 and Rule 59 of the Arizona Rules of Procedure for
the Juvenile Court required the court to conduct a placement hearing to
determine whether reunification would create a substantial risk of harm.
ADES responded that a placement hearing was not required because
neither the statute nor the rule applied to it.

¶4             The juvenile court rejected the Children’s argument, ruling
that ADES was not required to “file a written motion and request a hearing”
before returning the Children to their parents. But the court found that “the
parents ha[d] failed to remedy the circumstances that cause[d] the
[C]hildren to remain in out-of-home placement and that the minors cannot
return to any parent without a substantial risk of harm to their mental,
physical[,] or emotional health and safety.” Accordingly, the court ordered
the Children’s continued out-of-home placement and left the “minors’ legal
care, custody, and control” with ADES.



                                      2
              ALEXANDER M. et al v. ABRAMS (ADES et al.)
                       Opinion of the Court

¶5             Despite those findings and the Children’s objections, the
juvenile court found A.R.S. §§ 8-514 and 8-514.02 “controlling” and ordered
that ADES had the “discretion for transition and placement of the
[C]hildren with their parents” because the court had “confidence that the
case manager who so diligently filed this case and ensured that the parents
are completing their plans and monitoring all of the services that have been
in place will continue to do that monitoring.” Further, the court found
prospectively that “assuming that this case continues as it has been and the
parents continue to engage in services, . . . there [will be] no substantial risk
of harm [to the Children once] . . . the housing is secure, [and] the in-home
services are in place for the [C]hildren to be returned.”

¶6             The Children filed a petition for special action with the court
of appeals, which declined to accept jurisdiction. We granted review
because the respective authority of the juvenile court and ADES in this
context is a recurring issue of statewide importance. We have jurisdiction
under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-
120.24.

                                II. ANALYSIS

¶7              Whether a court can delegate discretion to ADES to return a
dependent child to his or her parents without first determining that return
is in the child’s best interests is a question of law, which we review de novo.
State v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168 (2007).

¶8            The Children contend that § 8-861 and Rule 59 apply because
ADES became their “guardian” when the trial court adjudicated them
dependent as to both parents, made them wards of the court, and placed
them in ADES’s custody. Accordingly, pursuant to both the statute and the
rule, they may be returned to their parents only if the court finds by a
preponderance of the evidence that their return would not create a
substantial risk of harm to their physical, mental, or emotional health or
safety.

¶9            We reject this argument. Section 8-861 provides that

       After the temporary custody hearing, on request of a parent
       or guardian[,] the court shall order that the child be returned
       to the child’s parent or guardian if the court finds by a

                                       3
             ALEXANDER M. et al v. ABRAMS (ADES et al.)
                      Opinion of the Court

       preponderance of the evidence that the return of the child
       would not create a substantial risk of harm to the child’s
       physical, mental or emotional health or safety.

Similarly Rule 59 states,

       At any time after the temporary custody hearing, a parent,
       guardian, or Indian custodian may file a motion with the
       court requesting return of the child to the custody of the
       parent, guardian[,] or Indian custodian. The court shall set a
       hearing to determine whether return of the child would create
       a substantial risk of harm to the child’s physical, mental, or
       emotional health or safety.

¶10           A.R.S. § 8-861 is part of the Article titled “Permanency
Determination.” Rule 59 implements § 8-861. Although no statute or rule
defines “guardian” for purposes of dependency proceedings, the use of the
term in related statutory provisions demonstrates that ADES does not serve
as a “guardian.” See, e.g., A.R.S. § 8-801 (defining “in-home intervention”
as services provided by ADES “while the child is still in the custody of the
parent, guardian, or custodian”); cf. A.R.S. §§ 8-101(9), -871(B) (defining
“permanent guardian” as “a legal guardian appointed by the court
pursuant to § 8-525 [now § 8-871], which provides that “[a]n agency or
institution may not be a permanent guardian”).

¶11            Furthermore, ADES was not appointed as the Children’s
guardian under the statutes generally authorizing such appointments. See
A.R.S. §§ 8-871, -872, 14-5201, -5207. Under the statutory scheme, ADES is
the Children’s custodian. See A.R.S. § 8-201 (“’Custodian’ means a person,
other than a parent or legal guardian, who stands in loco parentis to the
child or a person to whom legal custody of the child has been given by order
of the juvenile court.”). Accordingly, we hold that ADES is not a
“guardian” under A.R.S. § 8-861 or Rule 59.

¶12           ADES contends, and the juvenile court agreed, that it has
discretion to place the Children with their parents under §§ 8-514 and 8-
514.02. Those statutes generally address placement of children after
removal from their home, and § 8-514.02(A) provides that ADES “may place
a child with a parent or relative.” ADES argues that after the court placed
the Children in its custody, §§ 8-514 and 8-514.02 authorized it to return the

                                      4
              ALEXANDER M. et al v. ABRAMS (ADES et al.)
                       Opinion of the Court

Children to their parents without a hearing because “neither statute
requires that the juvenile court make any express findings prior to ADES
placing children with their parents.”

¶13           We reject this contention. Neither § 8-514 nor § 8-514.02
governs the return of dependent children to their parents; rather, those
sections apply when a dependent child is placed in out-of-home care.
Section 8-514 requires that ADES place the child in “the least restrictive type
of placement available, consistent with the needs of the child,” giving
preference to placement with a parent. A.R.S. §§ 8-514(A), (B)(1). The
parent with whom a child is placed, however, shall not allow the child to
“[h]ave any contact with the allegedly abusive or neglectful parent . . . .” Id.
§ 8-514.02(B).        Clearly then, placement with the allegedly
abusive/neglectful parent is not an option for placement with a parent or
relative. Because § 8-514.02(B) prohibits contact with a parent who is the
subject of the dependency case, § 8-514 only applies when a child is
dependent as to just one parent and ADES wants to place the child with the
other parent.

¶14           In this case, the Children were adjudicated dependent as to
both parents. Therefore, §§ 8-514 and 8-514.02 are inapplicable. In making
the dependency determination, the court found that the minors could not
be returned to either parent “without a substantial risk of harm to their
mental, physical[,] or emotional health and safety.” Accordingly, ADES is
not authorized to return the Children to their parents in the face of the
court’s prior order removing them from their parents’ home.

¶15            Arizona’s statutes, case law, and rules of procedure reflect
that the juvenile court is obligated to oversee the dependency case, to
consider the best interests of the child in every decision, and to
“independently review the decisions and recommendations of [A]DES.” In
re Maricopa Cnty. Juv. Action No. JD-6236, 178 Ariz. 449, 452, 874 P.2d 1006,
1009 (App. 1994). The court is required to hold periodic review hearings at
least once every six months. A.R.S. § 8-847. At that review hearing, the
court again “shall consider the health and safety of the child as a paramount
concern.” A.R.S. § 8-847(D). At a parent’s request, the court shall return
the child to the parent, if the court finds that return would not create a
substantial risk of harm to the child’s physical, mental, or emotional health
or safety. A.R.S. § 8-861.


                                       5
              ALEXANDER M. et al v. ABRAMS (ADES et al.)
                       Opinion of the Court

¶16            After a child is removed from the home, the court must hold
a permanency hearing within six months if the child is under three and
within twelve months if the child is older. A.R.S. § 8-862. At that hearing,
the court determines the future permanent legal status of the child based
on his or her clear best interests. A.R.S. §§ 8-862(D), (F), (H). Accordingly,
if reunification is not in the child’s best interests or further efforts would be
unproductive, the court may establish a permanent guardianship.
Arizona’s rules of juvenile procedure augment these statutory obligations.
See Ariz. R. P. Juv. Ct. 47.1(A), 50(B)(5),(6), 51, 55(E)(5), 56, 58(F)(3), 59.
Although the standard is phrased differently in various statutes and rules,
the court is required, at each step, to determine that its orders serve the
child’s best interests.

¶17            While many of the relevant statutes require the court to
consider the best interests of the child, the law provides more specific
direction with regard to reunification orders. With respect to disposition
hearings in general, A.R.S. § 8-845 requires the court to “consider the health
and safety of the children as its paramount concern.” As to the return of a
child to a parent or guardian, § 8-861 requires the court to determine that
“the return of the child would not create a substantial risk of harm.”
Clearly, a court cannot determine that return to the parents is in the child’s
best interests if it has not, under the circumstances actually presented to it,
considered the child’s health and safety and whether the child would be
subject to a substantial risk of harm if returned. Compare A.R.S. §§ 8-514, -
863, -871, with A.R.S. § 8-861. At a minimum, the court’s determination that
returning a dependent child to his or her parents is in the child’s best
interests requires finding that return does not subject the children to a
substantial risk of harm.

¶18           Upon finding that the Children were dependent in this case,
the juvenile court, considering their health and safety as its paramount
concern, ordered that an out-of-home placement was appropriate. That
order remained in effect at the April 2013 hearing, and only the court had
authority to modify it. To do so, at such time as ADES moved for a change
in the Children’s physical custody to the parents, the court was obliged to
independently review ADES’s recommendations and proposed actions to
determine whether reunification was in the Children’s best interests.

¶19         Here, the juvenile court not only failed to make that
determination, it also found that returning the Children to their parents

                                       6
             ALEXANDER M. et al v. ABRAMS (ADES et al.)
                      Opinion of the Court

would expose them to a substantial risk of harm. Nonetheless, the court
granted ADES discretion to return the Children to their parents once
housing was secured and services were put in place. Based on its
assumption that housing for the Children eventually would be secured and
the parents would complete necessary services, the court found that there
would be no risk of substantial harm to the Children if those contingent
circumstances occurred. In doing so, the court impermissibly delegated its
duty to independently determine that reunification is in the Children’s best
interests under the actual circumstances. Additionally, by declining to
enter an order to return the Children to the parents, the court deprived the
Children of the right to seek appellate review of the order changing
physical custody.

¶20           We recognize that reunification will not necessarily happen
immediately upon the court’s determination that it is in the child’s best
interests. Accordingly, after the juvenile court determines that return to the
parents is in the child’s the best interests, it can give ADES discretion to
effectuate that reunification. This discretion, including providing specific
directions as to the services or conditions that must be in place before
returning a child, is necessary to address the changing situations that can
occur in the process of reunification. The court is not required to
micromanage the transition of a child from out-of-home placement to
permanent placement.

¶21            But here, the juvenile court erred by granting discretion to
ADES to place the Children with their parents without a prior judicial
determination that, on the facts before it, reunification was in the Children’s
best interests. That determination must, at a minimum, reflect that return
would not create a substantial risk of harm to the Children’s physical,
mental, or emotional health or safety.

                            III. CONCLUSION

¶22            For the foregoing reasons, the juvenile court must specifically
determine that return of a dependent child to his or her parents is in the
child’s best interests before ordering the return. Because the juvenile court
did not do so here, we vacate the court’s order.




                                      7
