Opinion
No. 1 CA-JV 13-0204
02-11-2014
AILEEN A., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, M.C., J.C., Appellees.
Arizona Attorney General's Office, Phoenix By Michael Valenzuela Counsel for Appellees John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD10885
The Honorable Shellie F. Smith, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellees
John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined. OROZCO, Judge:
¶1 Aileen A. (Guardian) appeals the juvenile court's order revoking the guardianship of two minor children, M.C. (Sister) and J.C. (Brother) (collectively Children), of whom she had been legal guardian for approximately eight years. For the following reasons, we affirm.
The caption refers to Guardian as "Aileen A.," however most of the ADES' documentation and the record before us refer to Guardian as "Aileen W." More recent documents begin to refer to her as Aileen A.
FACTS AND PROCEDURAL HISTORY
¶2 Acting on a consent petition, a Colorado court appointed Guardian to care for Children in 2005. Guardian and Children subsequently moved to Arizona. In 2010 and 2011, the Arizona Department of Economic Security (ADES) received several complaints alleging Guardian's physical abuse and neglect of Children. ADES removed Children from Guardian's home in November 2011.
¶3 Shortly after removing Children from the home, ADES filed an initial dependency petition. The dependency petition requested the juvenile court find Children dependent as to their biological parents and Guardian. The biological parents are not parties to this appeal. In the petition, the State alleged that Children were dependent due to abuse or neglect committed by Guardian. The State noted that neglect included Guardian's failure to consistently address Children's mental health needs and Guardian's failure to ensure that Children participated in mental health services.
¶4 The petition also alleged that Guardian neglected Brother by failing to protect him from Sister's known sexually inappropriate behaviors by allowing Children to sleep in the same area of the home. Guardian denied the allegations of the petition but submitted the matter on the record for the court to determine the issue of dependency. The juvenile court found that Children were dependent as to Guardian by a preponderance of the evidence on February 10, 2012. The juvenile court approved a family reunification case plan.
¶5 For these proceedings, the juvenile court appointed a Guardian ad Litem (GAL) to represent Children and counsel to represent Guardian. ADES offered both Children and Guardian various reunification services. Although Guardian worked with ADES to comply with services to some extent, the juvenile court denied Guardian's multiple motions to return Brother to Guardian's care.
¶6 On March 26, 2013, ADES filed a motion with the juvenile court to revoke the Colorado guardianship and requested that the juvenile court communicate with Colorado pursuant to Arizona Revised Statutes (A.R.S.) section 25-1010. In this motion, ADES contended that Children had no significant contacts with the state of Colorado and despite being offered reunification services, Guardian continued to be unable to safely parent Children. Also, ADES alleged that Guardian had neither stable housing nor a stable source of income. Accordingly, ADES requested that the juvenile court modify the Colorado guardianship order or contact Colorado to make a modification of its guardianship order. By this point, Guardian had moved back to Colorado without the Children.
¶7 At a scheduled status conference on June 19, 2013, the court considered the motion to terminate guardianship. Guardian was not present at the conference, but was represented by her attorney. The juvenile court spoke with the Colorado court to resolve jurisdictional issues, pursuant to Uniform Child Custody and Jurisdiction Act (UCCJA) guidelines. See A.R.S. § 25-1031 (2007) (Initial Child Custody Jurisdiction statute). As a result of this call, the juvenile court determined that the Colorado guardianship was a consent guardianship. Guardian's counsel was present at the hearing and advised the court that Guardian objected to the revocation. Children's GAL supported revocation, but noted that Children were not in agreement with revocation. At this hearing, the juvenile court granted the State's motion to revoke the guardianship between Guardian and Children. The juvenile court also changed Children's case plan from family reunification to severance and adoption.
¶8 Guardian subsequently filed a motion asking the juvenile court to enter a final order regarding guardianship because the minute entry from the June 19, 2013, hearing was not signed. On July 25, 2013, Guardian filed her notice of appeal from the "Minute Entry Order issued by the [juvenile court] on June 19, 2013[,] and filed on July 12, 2013, terminating the guardianship issued in Colorado." On July 29, 2013, the juvenile court ordered ADES to file a form of order regarding the revocation of the guardianship. The juvenile court signed ADES's proposed order revoking the guardianship and it was filed on September 4, 2013.
DISCUSSION
I. Jurisdiction
¶9 The State argues this court lacks jurisdiction as Guardian's notice of appeal was premature. Our jurisdiction is limited by statute and generally only final judgments are appealable. See Francisco F. v. Ariz. Dep't of Econ. Sec., 228 Ariz. 379, 381, ¶ 6, 266 P.3d 1075, 1077 (App. 2011). Whether we have jurisdiction is a question of law that we review de novo. See State v. Flores, 218 Ariz. 407, 410, ¶ 6, 188 P.3d 706, 709 (App. 2008).
¶10 Jurisdiction over juvenile court rulings is governed by A.R.S. § 8-235, which provides that "[a]ny aggrieved party in any juvenile court proceeding . . . may appeal from a final order of the juvenile court." "An order that disposes of an issue such that it conclusively defines the rights and/or duties of a party in a dependency proceeding in the juvenile court of this state . . . is a final order subject to appeal." In re Yavapai Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 15, 680 P.2d 146, 151 (1984). A party appealing from an order of the juvenile court must file a notice of appeal "no later than 15 days after the final order is filed with the clerk." Ariz. R.P. Juv. Ct. 104(A). Under the Arizona Rules of Procedure for the Juvenile Court, a final order "shall be in writing and signed by the judge before an appeal can be taken." Id. Therefore, a notice of appeal filed before the entry of a signed final order is premature. See Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981).
¶11 However, in Barassi, the supreme court explicitly held that "a premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed." Id. at 422, 636 P.2d at 1204. Barassi, therefore, creates a "limited exception to the final judgment rule that allows a notice of appeal to be filed after the trial court has made its final decision, but before it has entered a formal judgment, if no decision of the court could change and the only remaining task is merely ministerial." Smith v. Ariz. Citizens Clean Elections Comm'n, 212 Ariz. 407, 415, ¶ 37, 132 P.3d 1187, 1195 (2006).
¶12 A key distinction between ministerial actions and discretionary determinations is whether any motions are pending before the trial court where the outcome might change depending on the trial court's discretion. Compare Baumann v. Tuton, 180 Ariz. 370, 372, 884 P.2d 256, 258 (App. 1994) (holding that a notice of appeal filed while a motion for a new trial was pending in the trial court did not confer jurisdiction on the appellate court), with Comeau v. Ariz. State Bd. of Dental Exam'rs, 196 Ariz. 102, 106, ¶ 16, 993 P.2d 1066, 1070 (App. 1999) (holding that a notice of appeal filed after the court issued an unsigned minute entry, but before the clerk entered the formal judgment was purely ministerial and therefore a premature notice of appeal was acceptable and conferred jurisdiction on the appellate court).
¶13 The narrow exception that Barassi creates is that dismissal of an appeal is not necessary where the trial court has already made its decision and only the formal judgment is lacking. See Baumann, 180 Ariz. at 372, 884 P.2d at 258. The facts of this case fit squarely within the Barassi exception. Although Guardian filed her notice of appeal prior to the juvenile court's filing of a signed formal judgment, the ultimate issue had already been decided: the guardianship was revoked. Therefore, the entry of a final judgment was ministerial and not discretionary. Moreover, ADES is not prejudiced by our exercise of jurisdiction because nothing changed in the case between Guardian's entry of her notice of appeal and the juvenile court's entry of the final judgment. Accordingly, we have jurisdiction to decide this appeal pursuant to A.R.S. §§ 8-235 (2007), 12-120.21.A.1 (2003), and -2101.A.1 (Supp. 2013). II. Revocation of the Guardianship
Because ADES's brief focused solely on its jurisdictional arguments and did not address Guardian's substantive arguments, we reach the substance of the appeal, evaluating the law without ADES's arguments.
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¶14 "The court may revoke the order granting permanent guardianship if the party petitioning for revocation proves a change of circumstances by clear and convincing evidence and the revocation is in the child's best interest." A.R.S. § 8-873.C (2007). Proof of a "change of circumstances" includes presenting evidence that the "child's permanent guardian is unable to properly care for the child." Id. § 8-873.A.2. We will "affirm a juvenile court's order based on findings of clear and convincing evidence unless no reasonable evidence supports those findings." Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997). Moreover, we will not reverse the juvenile court's order unless the decision is clearly erroneous. Id.; see also Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App. 1989) ("The juvenile court sits as the trier of fact in a termination proceeding and, on appeal, we must accept the juvenile court's ruling unless its finding is clearly erroneous.").
¶15 Guardian argues that her due process rights were violated when the juvenile court revoked her guardianship without a formal evidentiary hearing. While it is true that parents enjoy a fundamental constitutional right to the care, custody, and control of their children, that right is not absolute. Monica C. v. Ariz. Dept. of Econ. Sec., 211 Ariz. 89, 92, ¶ 16, 118 P.3d 37, 40 (App. 2005). Moreover, this fundamental constitutional parental right is simply not extended in its entirety to court-appointed legal guardians. See Jennifer B., 189 Ariz. at 556, 944 P.2d at 71.
¶16 In Arizona, there are two forms of guardianship. The first form, which the juvenile court correctly determined is not applicable in this case, is guardianship granted under Title 8 or "permanent guardianship of a child." See A.R.S. § 8-871 (Supp. 2013). Within the Title 8 context, a guardianship is similar to the parental relationship in that before revoking such status the juvenile court must find clear and convincing evidence that a statutory ground for revocation exists and that revocation is in the best interest of the child by a preponderance of the evidence. A.R.S. §§ 8-873.A and C.
¶17 The second form of legal guardianship, delineated within Title 14, governs parental consent guardianships, and is applicable here. Title 14 guardianship establishes as a matter of statute that, "[u]nder the general provisions of the probate code, a trial court [has] broad discretion to appoint or remove a [parental consent] guardian based solely on a consideration of the best interests of the ward." See Jennifer B., 189 Ariz. at 555, 944 P.2d at 70 (emphasis added). A court may revoke the legal guardianship of a child under Title 14 "[a]fter notice and a hearing on a petition for removal." A.R.S. § 14-5212.C (2012). Custody granted under Title 14, however, does not guarantee the same "permanency in the custodial relationship" as is guaranteed by Title 8. See Jennifer B., 189 Ariz. at 555-56, 944 P.2d at 70-71. This is because A.R.S. § 14-5209 only provides a guardian with most of the "powers and responsibilities of a parent who has not been deprived of custody." See Jennifer B., 189 Ariz. at 556, 944 P.3d at 71. The child in a Title 14 guardianship remains a ward of the court throughout the child's dependency, and therefore the court has continuing jurisdiction to review and enforce the guardianship order for that child. Id.
¶18 A guardianship based upon parental consent terminates once consent is withdrawn because such a guardianship does not terminate the parent-child relationship. In re Guardianship of Mikrut, 174 Ariz. 544, 547, 858 P.2d 689, 692 (App. 1993). "[W]here a guardianship is based upon a parent's consent, the proper procedure upon the parent's withdrawal of consent is for the probate court to terminate the guardianship." Id. at 548, 858 P.2d at 693.
¶19 Here, the Colorado court had granted Guardian a parental-consent guardianship in 2005. After securing guardianship, Guardian moved the Children from Colorado to Arizona, where the Children ultimately became subject to the jurisdiction of the Arizona juvenile court. While living in Arizona, the Arizona juvenile court declared Children dependent. Accordingly, the juvenile court had the authority to determine if the Colorado guardianship continued to be in the Children's best interests and revoke consent of the guardianship. See Mikrut, 174 Ariz. at 548, 858 P.2d at 693.
¶20 Furthermore, Guardian effectively waived any due process rights she had concerning revocation of the consent guardianship by failing to respond to ADES's written motion to revoke the guardianship. Also, because Guardian's counsel appeared before the court at that hearing and addressed the revocation; it is apparent Guardian had actual notice of the State's motion and the subsequently set hearing.
¶21 The State's written motion outlined both the long-standing involvement of ADES with Guardian and Children as well as the extensive services that ADES had offered to Guardian who "continue[d] to be unable to safely parent the children." ADES also noted that Children were in its care for over fifteen months, and Guardian still lacked stable housing and income. ADES further argued that Guardian was unable to safely parent the children at this time and in the near future. Accordingly, ADES requested that the juvenile court revoke guardianship because "[b]oth children have been abused and neglected and [deserved] permanency."
¶22 Therefore, Guardian received notice that ADES was pursuing revocation months before the June hearing where revocation was considered and granted. Guardian had five to ten days to respond to the State's motion. See Ariz. R.P. Juv. Ct. 46.C. "The [juvenile court] may rule on the motion, with or without a hearing, if the motion states there is no objection or the time for filing an objection has expired." Id. Guardian did not respond to the motion. Beyond not having responded in writing to the State's motion, she also never requested an evidentiary hearing concerning the revocation request.
¶23 In her brief, Guardian argues she was denied due process because she was given no opportunity to orally respond to this motion. We disagree. Guardian had ample time, seventy-nine days in fact, to make her record in regard to the State's request to terminate the guardianship, yet Guardian failed to respond. Moreover, Guardian was represented by counsel at the June 12 hearing, who stated Guardian's general objection to revocation.
¶24 The exercise of a party's due process rights can be reasonably regulated. See, e.g., Ariz. R.P. Juv. Ct. 46.C (granting the juvenile court authority to rule on a motion without a hearing when the motion was not objected to or the response was not timely filed). Even though A.R.S. § 14-5212.C grants parties a right to a hearing prior to the court's revocation of legal guardianship of a child under Title 14, Guardian waived her right to a hearing on the motion by failing to either timely respond to ADES's motion or request an evidentiary hearing. Accordingly, the juvenile court did not err in not sua sponte setting a hearing on the State's motion seeking revocation of the guardianship.
¶25 Moreover, we agree with the juvenile court that ADES presented sufficient evidence to demonstrate that Guardian could not provide an adequate, safe home for Children. We further agree that reasonable evidence supports the juvenile court's findings that revocation was in Children's best interests.
CONCLUSION
¶26 For the foregoing reasons, we affirm the juvenile court's order revoking the guardianship.