A dependency proceeding is a formal court process to determine if a child's well-being requires the state to intervene in the parent-child relationship.⁽¹⁾ The proceeding determines whether or not the child is dependent on the state to provide parental care because of the parents' inability or unwillingness to provide proper and effective care and control.⁽²⁾ A child may be dependent on the state because the child has been abused or neglected or because the child is at risk for abuse or neglect in the imminent future.⁽³⁾

Dependency is a somewhat broader concept than abuse or neglect and does not necessarily imply that the parent is at fault or has committed some kind of wrongful act. Rather, the focus of a dependency proceeding is on the capacity of the parent--not the parent's motives. There is really only one question: Does the child have a parent who can provide minimally adequate parental care or does the state have to step in? Thus, for example, a mentally retarded parent who would never harm a child or deliberately neglect a child might nevertheless be considered incapable of caring for a child with a life threatening disease, which requires specialized training to monitor.

In other states, a dependency proceeding might be called a "child protective proceeding" or a "child abuse and neglect" proceeding. The distinction is important because the Arizona definition of dependency is significantly more inclusive than some traditional notions of child abuse and neglect.⁽⁴⁾

Dependency proceedings are heard exclusively in the Juvenile Court.⁽⁵⁾ While Juvenile Court is, technically, part of the Superior Court, it operates in a separate building and under a different set of rules and procedures than used in other civil proceedings. Juvenile Court also has its own culture or way of doing things that is less formal and, in many ways, more innovative than that of other courts.

In theory, the Juvenile Court is not in the business of finding fault, assessing blame, or meting out punishment. Rather, the Juvenile Court is interested solely in protecting the child from immediate harm and in providing the services necessary to help preserve the family. If the efforts to help make the family functional do not succeed, then the Juvenile Court is empowered to find an alternative permanent, safe and nurturing home for the child.⁽⁶⁾

We say that the Court is not about parental fault. That is certainly true under the law. Unfortunately, however, the Dependency process is a terrifically human While the law may say otherwise, in actual practice fault, blame, attitude, and a host of other technically irrelevant considerations play a huge role in determining what will or will not happen to a child in the court process. None of the participants--including the judges, case managers, therapists, and lawyers--are immune from visceral reactions to parental behavior.

Dependency proceedings are usually initiated by the State through the Arizona Department of Economic Security [DES].⁽⁷⁾ The division of DES responsible for investigating and monitoring dependency proceedings is called Child Protective Services [CPS]. In Juvenile Court, DES is represented by the Arizona Attorney General's Office. For the purposes of the remainder of this handbook the acronyms "DES" and "CPS" are used interchangeably unless otherwise specified.

In Arizona, a dependent child is one who is under the age of 18 and who is:

"(a) In need of proper and effective parental care and control and who has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control.

(b) Destitute or who is not provided with the necessities of life, including adequate food, clothing, shelter or medical care, or whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian, or any other person having custody or care of child."⁽⁸⁾

To some extent, dependency may also depend on the particular needs of the child rather than the conduct of the parent. For example, dependency has been found where the child has cerebral palsy and the parent, while capable of providing care for a healthy child, had difficulty managing the child's special needs. p. 14 at end of second paragraph add:

It has even been argued that lack of legal custody by itself may be a grounds for dependency. In a situation where a parent with legal custody abused or neglected a child, the theory is that the non-custodial parent would not be able to step in and protect the child from the abusing parent in the absence of custodial rights allowing them to remove the child from the offending parent. At least one recent appellate case has cast some serious doubt on the "lack of legal capacity to protect" argument. Matter of Meryl R., 992 P. 2d 616, 311 Ariz. Adv. Rep. 17 (Division One, 1999).

One of the difficult aspects of practicing dependency law is that you won't find a further definition of "dependent child" in the statutes. Trial Court decisions often go unpublished, and when decisions are appealed, the appellate courts grant broad discretion to Juvenile Court Judges. It is, therefore, imperative that a juvenile court lawyer get to know the lay of the land for the locality in which that lawyer practices. Situations that may result in dependency adjudications in one venue may be dismissed as insufficient in others.

What does it mean when a child has been adjudicated dependent? Essentially, it means that the State may intervene to provide protection to the child and/or services to the child and the family in order to try to remedy the problems that caused the dependency in the first place. In practical terms, a number of outcomes can result. The child could remain in the home or the child could be removed temporarily, for a long time, or in some cases, permanently.⁽¹¹⁾

If the child stays at home, the case could remain monitored by the Juvenile Court for a time or dismissed outright. In either case, the State might provide services to support and strengthen the family.⁽¹²⁾ If the child is removed from the home, the child will be placed in a foster home or with a relative.⁽¹³⁾ In addition, under court supervision, the State must develop an appropriate individualized case plan to ensure the child's health and safety and to attempt to reunify the family.⁽¹⁴⁾ The case plan should be designed to provided the assistance necessary to alleviate the problems that gave rise to the dependency in the first place. In most instances, if the parent follows and completes the case plan, the child will be returned.

Removing a child from his or her family is serious business. Even when removal is clearly warranted for the child's physical safety, being taken from home can have a huge negative consequences for a child. Separation--even from abusive parents--is traumatic. In addition, the child may be separated from brothers and sisters, forced to change schools, isolated from friends, or placed in unfamiliar and often scary surroundings. For an infant child, separation may impede or even forever destroy the natural bonding and attachment process between parent and child.

Separation is no less difficult for a parent. In addition to the emotional shock of losing one's child, a parent may become ostracized by his or her family, stigmatized by neighbors, or lose eligibility for government subsidies and/or public housing. Further, in order to reunite with the children, a parent may be forced to navigate a child protective bureaucracy that is often confusing, contradictory, and speaking an alien language. Many times, completing a case plan is a task for which many a sincere and well meaning parent is ill equipped.

Thus, continued visitation, good communication, and an intelligent case plan are necessary to maximize the chances for successful reunification. The attorneys for the child, the parents, and the State play key roles in this process.

Of course, whether or not a child is adjudicated dependent is subject to full court process. Parents have significant rights to raise their children free from interference from the State. Parents have a right to Court review of temporary decisions as well as the right to a trial on the substantive allegations of dependency and on any proposed dispositions. That process will be discussed in later sections of this handbook.

When a child is declared dependent and removed from the home, in nearly all cases, the state is obligated to make "reasonable efforts" to help reunify the family.⁽¹⁵⁾ These efforts may include psychological testing and counseling services, medical assistance, drug or alcohol monitoring and treatment, parental education, job training, housing subsidies, or any number of other services that would help put the family back together.⁽¹⁶⁾ In many cases a parents and children are reunited with help from the Courts, the State and other family members. In other cases, things do not proceed smoothly.

In some situations, such as severe child sexual abuse or acute drug addiction, reunification is simply not a reasonable alternative. In others, for a variety of reasons, the parent or guardian will be unable to remedy the conditions that caused the dependency in the first instance within the time prescribed by law. The Court, then, is obliged to find a permanent placement for the child--either through adoption, permanent guardianship with a relative, or long term care--consistent with the child's best interests. There is a decided preference for adoption or guardianship over long-term foster care under federal law.

In any event, whether or not progress is being made towards reunification, if a child remains placed out of the parent's home for a year, the Juvenile Court must hold permanency planning hearings to determine a long term plan for the child.⁽¹⁷⁾ The permanent plan may involve returning the child; continued reunification services for an additional six months; discontinuing reunification services and placing the child in long-term foster care; seeking a permanent guardianship; or seeking permanent termination of parental rights and placing the child with an adoptive family.⁽¹⁸⁾

If the parent is unable or unwilling to complete the case plan and/or unable or unwilling to remedy the problems that caused the child's removal, then, after an appropriate period of time, the State may seek permanent termination of the parent's rights. The Juvenile Court refers to a permanent termination of parental rights as a severance.⁽¹⁹⁾

In a severance, proceeding, the State must not only prove certain specified statutory grounds for termination, but also show that termination of parental rights is in the child's best interests.⁽²⁰⁾ In most cases where the parent's rights are terminated, the State will seek to place the child for adoption.

In some cases, when reunification is not likely but when termination is not in the child's best interests and someone (usually another family member) is willing to take permanent care of the child, the State may seek permanent guardianship with the relative.⁽²¹⁾

In the next several sections, we will discuss the dependency process in more detail. The discussion will emphasize the critical role of the child's attorney in helping to make the process work. While this manual is designed to focus on the practical aspects of Juvenile Court, keep in mind that there are a number of difficult philosophical and ideological themes that challenge all the participants in the process.

1 ARS §§ 8-201(13), 8-801, et seq.

² ARS § 8-201(13)

³ Thus the State does not have to wait until the child is actually hurt to step in. If a parent is a demonstrable crack cocaine addict, for example, the state does not have to wait until that parent causes actual harm to the child in order to act.

⁴Different states approach this problem in different ways. New York and Pennsylvania, for example, utilize the concept of "abused or neglected child" rather than the notion of dependency. The focus in those states is whether the child has been harmed or is in imminent danger of being harm. There are some subtle advantages and disadvantages to the more parent-focused dependencies versus the more child-focused definitions of an abused or neglected child. The growing case law in both types of jurisdictions, however, appears to be making the distinctions nominal at best

⁵ARS §8-202

⁶ARS §§8-861, 8-862

⁷ Arizona law provides that private individuals can initiate dependency proceedings (ARS §8-841).

⁸ ARS §8-201. The statute further defines a dependent child as one who is (a)(iii) Under the age of eight years and who is found to have committed an act that would result in adjudication as a delinquent juvenile or incorrigible child if committed by an older juvenile or child and (iv) Incompetent or not restorable to competency and who is alleged to have committed a serious offense as defined in § 13-604.

⁹ ARS §8-533(3).

¹⁰See, Adrine, Donald B. and Alexandria M. Ruden, Impact of Domestic Violence on Children, Ohio Domestic Violence Law Treatise, Ch. 14 (2000); and Ver Steegh, Nancy, The Silent Victims: Children and Domestic Violence, 26 Wm.Mitchell L.Rev 775 (2000).

¹¹ ARS §8-821, §8-845

¹² ARS §8-845, §8-846

¹³ ARS §8-821, §8-501; Foster home is defined in 8-501 as a home maintained by any individual(s) having the care or control of minor children other than those related by blood or marriage. Foster homes are licensed and supervised by the state pursuant to ARS §8-516. Relative placement may be ordered by the court even if the relatives are not licensed foster placements. Relative placements may be eligible for state foster care payments. Even though the placement is with a relative, which potentially minimizes disruption of the child's life, the court will require the relative to obey the court orders regarding such things as visitation between the parent and the child.

¹⁴ ARS §8-846

¹⁵ ARS §8-846

¹⁶ ARS §8-846

¹⁷ ARS §8-861, §8-862

¹⁸ ARS §8-862

¹⁹ ARS §8-531, et seq.

²⁰ ARS §8-533

²¹ ARS §8-862B and §8-871, et seq.