Opinion
1 CA-JV 23-0114
03-12-2024
IN RE DEPENDENCY AS TO A.M.
Law Office of Florence M. Bruemmer, PC, Anthem By Florence M. Bruemmer Counsel for Appellant Arizona Attorney General's Office, Tucson By Dawn Rachelle Williams Counsel for Appellee Department of Child Safety Mathers Law Offices, LLC, Scottsdale By Christopher M. Mathers Counsel for Appellee A.M.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. V1300JD201680021 The Honorable Anna C. Young, Judge
Law Office of Florence M. Bruemmer, PC, Anthem By Florence M. Bruemmer Counsel for Appellant
Arizona Attorney General's Office, Tucson By Dawn Rachelle Williams Counsel for Appellee Department of Child Safety
Mathers Law Offices, LLC, Scottsdale By Christopher M. Mathers Counsel for Appellee A.M.
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Andrew M. Jacobs and Judge Jennifer M. Perkins joined.
MEMORANDUM DECISION
WEINZWEIG, JUDGE:
¶1 Lancer B. ("Father") appeals the juvenile court's order dismissing A.M.'s ("Child") dependency as to Jill M. ("Mother"). Because we find no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Child was born at home in June 2022. Soon thereafter, he suffered withdrawal symptoms and was taken to the emergency room, where he tested positive for methamphetamine, opiates and fentanyl. The Department of Child Safety ("DCS") questioned Father, who also tested positive for methamphetamines.
¶3 DCS took Child into custody upon his release from the hospital and petitioned the juvenile court to find that he was dependent as to Mother and Father. Mother did not contest the petition, but Father did. The court found Child dependent as to (1) Mother because she was unable or unwilling to properly care for Child and had neglected Child with her substance abuse and refusal to seek timely medical care, and as to (2) Father because he had neglected Child with his substance abuse, refusal to participate in substance-abuse testing or treatment, and unfit living situation.
¶4 Mother moved the juvenile court to return Child to her physical custody. Father opposed the motion. DCS did not. After an evidentiary hearing in December 2022, the court found Mother had progressed enough to return Child to her care as the dependency progressed.
¶5 Two months later, DCS moved to dismiss the dependency, and Mother requested temporary orders for custody and legal decisionmaking in a separate domestic-relations matter. The juvenile court consolidated the domestic-relations and dependency matters and set a dependency review hearing in March 2023, at which Mother, DCS and Child's counsel agreed the dependency should be dismissed. After that hearing, the juvenile court dismissed the dependency and issued temporary orders granting legal decision-making and physical custody to Mother. Father appealed the dismissal of the dependency.
¶6 As Father's appeal was pending, DCS discovered it had not properly disclosed 11 portal documents to the parties. As a result, DCS moved to stay the appeal and revest jurisdiction in the juvenile court to determine whether any of the portal documents were relevant to the dependency's dismissal. The court reappointed counsel and scheduled a status hearing for September 2023.
¶7 Father appeared remotely for that hearing. His counsel did not appear. The juvenile court found the portal documents would not have affected its decision to dismiss the dependency action against Mother because 10 of the documents were dated after the dependency finding and the last document was about Father, not Mother. The stay was lifted and Father's appeal resumed. We have jurisdiction. See A.R.S. §§ 8-235 and 12-120.21(A)(1).
DISCUSSION
I. Dismissal of Dependency Action as to Mother
¶8 Father first argues the juvenile court abused its discretion when it dismissed Child's dependency as to Mother. We review the juvenile court's dismissal of a dependency action for an abuse of discretion, Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 50, ¶ 13 (App. 2016), and accept its findings of fact unless clearly erroneous, Michael M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 230, 233, ¶ 10 (App. 2007). We will affirm unless no reasonable evidence supports the dismissal. Shella H., 239 Ariz. at 50, ¶ 13.
¶9 Arizona law defines a dependent child as a one who needs "proper and effective parental care and control," but "has no parent or guardian . . . willing to exercise or capable of exercising such care and control." A.R.S. § 8-201(15)(a)(i). A child "whose home is unfit by reason of abuse [or] neglect" might also be considered dependent. A.R.S. § 8-201(15)(a)(iii).
¶10 The record contains reasonable evidence to support the dismissal of the dependency action against Mother. By the time of dismissal, Mother had obtained employment, appropriate housing and reliable transportation. What is more, Child was already living with Mother, her grandmother and maternal great-grandmother. DCS reported he was "doing very well in his mother's care." Mother consistently met the requirements of her methadone treatment and substance-abuse testing, and DCS had conducted an unannounced home visit and found no issues. We find no abuse of discretion.
II. Temporary Orders
¶11 Father next argues the juvenile court violated his due process rights when it issued the temporary orders.
¶12 This court has an independent duty to consider its own jurisdiction. In re Reymundo F., 217 Ariz. 588, 590, n.1 (App. 2008). We lack jurisdiction here because temporary orders under A.R.S. § 25-404 are "merely preparatory to a later proceeding" and are generally not appealable. Villares v. Pineda, 217 Ariz. 623, 624-25, ¶ 10-11 (App. 2008) (internal citation omitted).
¶13 Even so, Father claims we have jurisdiction under A.R.S. § 12- 2102(A), which grants us authority over "intermediate orders involving the merits of the action and necessarily affecting" a final judgment. Hydroculture, Inc. v. Coopers &Lybrand, 174 Ariz. 277, 284 (App. 1992). Not so. Section 25-404 grants jurisdiction over orders "which necessarily affect the validity of" a final judgment-here, the dismissal of the dependency action. Truck Ins. Exch. v. State Comp. Fund, 138 Ariz. 116, 118 (App. 1983). The temporary orders at issue here resolved only physical custody and legal decision-making issues, neither of which "necessarily affect" the juvenile court's dismissal of the dependency action. Section 25-404 does not apply and we lack jurisdiction to review the temporary orders.
III. Due Process
¶14 Lastly, Father argues the juvenile court violated his right to counsel at the September 2023 hearing on the portal documents. We review that issue de novo. Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018).
¶15 An indigent parent in juvenile proceedings has a right to appointed counsel afforded by statute (A.R.S. § 8-221), by rule (Ariz. R. P. Juv. Ct. 303(b)), and as a matter of due process, Daniel Y. v. Ariz. Dep't of Econ. Sec., 206 Ariz. 257, ¶ 14 (App. 2003) (noting a "constitutional dimension" of right to counsel in severance). A juvenile court that proceeds without an indigent parent's counsel present commits "reversible error," Brenda D., 243 Ariz. at 447-48, and any resulting order is void, Tracy D. v. Dep't of Child Safety, 252 Ariz. 425, 433, ¶ 31 (App. 2021), if the error caused prejudice, Borchers v. Ariz. Bd. of Pardons &Paroles, 174 Ariz. 463, 467 (App. 1992).
¶16 Father cannot show his lack of counsel at the September 2023 status conference caused him any prejudice. Of 11 portal documents disclosed by DCS, only one predated the dependency finding as to Mother, and that document pertained only to Father, not Mother. We discern no due process error because Father suffered no prejudice.
CONCLUSION
¶17 We affirm.