NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

HEATHER A., JARED M., Appellants, 

v.

DEPARTMENT OF CHILD SAFETY, S.M., H.M., Appellees. 

No. 1 CA-JV 21-0315 

Appeal from the Superior Court in Maricopa County

No. JD31153 

The Honorable Lori Bustamante, Judge

AFFIRMED

COUNSEL

Law Office of H. Clark Jones LLC, Mesa

By H. Clark Jones

Counsel for Appellant

David W. Bell Attorney at Law, Higley

By David W. Bell

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Emily M. Stokes

Counsel for Appellees

FILED 3-31-2022
HEATHER A., JARED M. v. DCS et al.

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which 

Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.

G A S S, Vice Chief Judge:

¶1 Mother and father appeal the superior court’s order 

terminating their rights to their respective children. The parents do not 

dispute whether the Department of Child Safety (DCS) proved the statutory 

grounds for termination or the superior court’s finding they were unfit. 

Instead, they challenge the guardian ad litem’s (GAL’s) absence from the 

hearing. They argue the hearing violated the children’s due process rights 

because the children were “unrepresented” during the termination hearing. 

Because the parents lack standing to raise this issue, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Just after the parents’ child (H.M.) was born, DCS petitioned 

for a dependency based on parents’ substance abuse, which the superior 

court granted. DCS implemented a safety plan, and the superior court 

appointed a GAL to represent the children’s best interests. During the 

thirty-five-month dependency, the GAL attended all but three court 

hearings.

¶3 DCS provided services to both parents. Throughout the 

dependency, mother continued to abuse either methamphetamine or 

heroin. Both parents participated inconsistently in services. Four months 

into the dependency, father violated probation and was imprisoned on a 

2011 offense. He remained incarcerated for the next twenty-one months. 

Upon his release, father minimally engaged in services and did not enhance 

his parenting capacities.

¶4 Twenty-nine months after petitioning for a dependency, DCS

moved to terminate the parents’ parental rights under the chronic 

substance-abuse and fifteen-month out-of-home placement grounds. See 

A.R.S. § 8-533.B.3, .B.8.c. The superior court terminated mother and father’s 

rights to H.M. The court also terminated mother’s rights to an older child, 

S.M. Because the parents raise a purely legal issue, we need not review the 

facts underlying the termination, and instead here focus on the facts 
HEATHER A., JARED M. v. DCS et al.

Decision of the Court

3

impacting their legal argument and discuss other underlying facts in

paragraphs 14 through 18 below.

¶5 The GAL was not present when the termination hearing 

commenced on September 27, 2021. After delaying the start of the hearing 

for a few minutes, the superior court said it was “inclined to at least start 

without [the GAL] and see how far we can get.” Neither mother nor father 

objected to proceeding in the GAL’s absence.

¶6 The GAL still had not appeared by the time the hearing 

closed. The superior court expressed its concern and asked the parties for 

“any suggestions on how to proceed.” Father’s counsel suggested the 

minute entry could require the GAL “file something in writing to the Court 

with his position and it could be due by a date-certain, and then the Court 

could consider that in making [its] decision.” Mother’s counsel said, “other 

courtrooms regularly waive [GALs] in this proceeding, so I don’t have any 

objection to doing something of that nature.” The court then directed the 

GAL to submit his position and took the matter under advisement. 

¶7 The GAL submitted his written position in favor of 

termination, and a week later, the superior court terminated the parents’ 

rights on the grounds alleged. The parents appealed. This court has 

jurisdiction under article VI, section 9, of the Arizona Constitution, and 

A.R.S. §§ 8-235.A, 12-120.21.A.1, and 12-2101.A.1. 

ANALYSIS

¶8 This court reviews “the interpretation of statutes, court rules, 

and constitutional issues” de novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 

437, 442, ¶ 15 (2018). This court views the evidence and reasonable 

inferences to be drawn from it in the light most favorable to affirming the 

superior court’s order and will not reverse unless no reasonable evidence 

supports the factual findings. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 

547, 549, ¶ 7 (App. 2010).

¶9 “To possess standing to assert a constitutional challenge, an 

individual must . . . have suffered some threatened or actual injury resulting 

from the putatively illegal action.” State v. B Bar Enters., Inc., 133 Ariz. 99, 

101 n.2 (1982) (cleaned up). “[A] party may have standing to protect a 

constitutional right possessed solely by a third person and not by the party” 

if the party has “a substantial relationship to the third person, the third 

person [is] unable to assert the constitutional right on his or her own behalf, 

and the failure to grant the party standing [would] result in a dilution of 

the third person’s constitutional rights.” Id. As biological parents, father 
HEATHER A., JARED M. v. DCS et al.

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and mother have a substantial relationship with their respective children. 

The children, however, are parties to this appeal. They are represented by 

counsel who can assert their constitutional rights and who did not do so 

here. Accordingly, the exception to the third-party-standing rule does not 

apply.

¶10 Further, the superior court did not err in proceeding with the 

termination hearing without the GAL’s presence. In a termination 

proceeding, a GAL is appointed to “protect the interest of [a] child” and 

“may make decisions in the child’s best interests irrespective of the child’s 

expressed wishes.” Castro v. Hochuli, 236 Ariz. 587, 591–92, ¶ 11 (App. 2015); 

Ariz. R.P. Juv. Ct. 40.A. A child’s counsel, on the other hand, is appointed 

mainly to “advocate for [the child’s] subjective goals in the litigation.” See 

Castro, 236 Ariz. at 591, ¶ 8. 

¶11 On the date of the termination hearing, the law required the 

superior court to appoint a GAL only when a child was subject to

dependency proceedings involving abuse or neglect allegations. See A.R.S. 

§ 8-221.A, .I (2010) (amended 2021). The legislature later amended that

statute to require an appointed attorney for a child subject to any

dependency or termination proceeding. A.R.S. § 8-221.A. But at the time of 

the trial, the children were not entitled to an attorney because the

amendment did not take effect until after the termination hearing 

concluded.

¶12 We do note the unusual timing of the GAL’s involvement. The 

GAL, who did not appear at the termination hearing, now represents the 

children as their attorney in this appeal. The change in his role is the result 

of an administrative order issued two days after the termination hearing in 

this case. See Maricopa Cnty. Super. Ct. Admin. Order No. 2021-140; see also 

2021 Ariz. Legis. Serv. ch. 228, § 1 (S.B. 1391) (West). In that order, the 

Maricopa County Superior Court converted all GALs to appointed 

attorneys to comply with the amendment to § 8-221.A mandating all 

children in dependency proceedings be represented by an attorney. See id.

We also note the children’s attorney filed no brief in this appeal. And when 

he filed a position statement with the superior court regarding termination, 

he indicated he was filing as the GAL, but also indicated he was “attorney 

for minor.”

¶13 Nevertheless, the parents assert the GAL acted improperly by 

submitting a position without attending the hearing. The parents, however,

invited the error by suggesting the superior court proceed as it did. See State 

v. Herrera, 232 Ariz. 536, 544, ¶ 16 (App. 2013) (this court “will not find 
HEATHER A., JARED M. v. DCS et al.

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reversible error when the party complaining of it invited the error” (citation 

omitted)). Father’s counsel suggested the GAL should “file something in 

writing to the court with his position,” and mother’s counsel did not object 

to waiving the GAL’s presence.

¶14 As a final point, the parents have not demonstrated any 

resulting harm from the alleged violation. See Monica C. v. Ariz. Dep’t of 

Econ. Sec., 211 Ariz. 89, 93–94, ¶¶ 21–22, 24–25 (App. 2005). DCS presented 

an extensive record for the superior court to review, including twenty-four 

exhibits and testimony. Many of those exhibits included updates about the 

children. Further, the case manager testified about the children’s subjective 

positions, saying ten-year-old S.M. was “so done with this whole DCS 

thing” and wanted to live with S.M.’s aunt and “be done with it all.”

¶15 Three-year-old H.M. was just beginning to express wants and 

needs. Because of father’s inconsistency at visits, H.M. became very 

frustrated, and “it became really difficult to get [H.M.] to even go on a visit.” 

Soon afterward, H.M. refused to go on a visit because the child “was just 

really determined [to not] go and kind of had a meltdown in the parking 

lot of [the] daycare.” The parent aide had to call H.M.’s placement to pick 

the child up because H.M. would “not get[ ] in the parent aide’s vehicle that 

day.” 

¶16 The superior court considered this evidence, along with 

evidence of the parents’ extensive history of substance abuse, failure to 

engage in substance-abuse treatment or establish sobriety, and failure to 

enhance their caregiving capacities or provide the children with a safe and 

stable home.

¶17 The GAL, in turn, recommended termination “based upon 

[his] familiarity with the parents[‘] participation with services . . . up to the 

trial date.” The GAL’s position was well-informed as he had represented 

the children throughout the dependency and was familiar with the 

evidence presented at trial. 

¶18 Based on these facts, the superior court found maintaining the 

parent-child relationship would be detrimental to the children. Conversely, 

the superior court found the children would benefit from termination 

because they will continue to have “their needs met in a safe and stable 

environment” and “will be able to move forward toward permanency.” 

Ultimately, the GAL’s recommendation—filed after the termination 

hearing—aligned with the overwhelming evidence showing termination 

was in the children’s best interests. The record does not show how the GAL 
HEATHER A., JARED M. v. DCS et al.

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failed to protect the children’s interests or how his absence from the 

termination hearing harmed the children or diluted their constitutional 

rights. See Ariz. R.P. Juv. Ct. 40.A.

¶19 Though the parents argue the GAL should have advocated for 

the children’s subjective position rather than their best interests, the parents 

again invited the alleged error. Father’s counsel recommended, without 

objection, the GAL submit his position in writing, and the superior court 

ordered the GAL to do so. Although the due date for the GAL’s filing fell a 

week after the amendment to § 8-221.A became effective, the parents did 

not request a change to the superior court’s order. Further, the parents fail 

to show the children’s subjective positions would have differed 

substantively from the position the GAL filed with the court.

¶20 On this record, the parents have not shown standing, error, or 

resulting prejudice.

CONCLUSION

¶21 We affirm.