Opinion
No. 1 CA-JV 13-0226
03-04-2014
Jessica R., Appellant, v. Arizona Department of Economic Security; C.G., Appellees.
Jennifer Perkowski, Attorney at Law, Mesa By Jennifer Perkowski Counsel for Appellant Arizona Attorney General's Office, Phoenix By Michael F. Valenzuela Counsel for Appellee Arizona Department of Economic Security
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 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. JD21693
The Honorable Joan Sinclair, Judge
AFFIRMED
COUNSEL
Jennifer Perkowski, Attorney at Law, Mesa
By Jennifer Perkowski
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee Arizona Department of Economic Security
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 Jessica R. ("Mother") appeals from the juvenile court's order changing physical custody of her biological son, C.G. ("Son"). Mother contends that the court violated her due process rights by changing Son's physical custody "over her objection" and "before allowing her to argue." For the following reasons, we affirm.
The caption has been amended to safeguard the identity of the juvenile pursuant to Administrative Order 2013-0001.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to affirming the juvenile court's order. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶2 In March 2012, Child Protective Services ("CPS") took temporary custody of then one-year-old Son after it received reports that Mother suffered mental breakdowns, admitted to substance abuse, and faced imminent incarceration for a year or longer. The juvenile court eventually found Son dependent and ordered a case plan of family reunification concurrent with severance and adoption.
¶3 The Arizona Department of Economic Security ("DES") initially placed Son with his maternal grandmother, but within months moved to change physical custody to another family relative because it deemed the placement unsuitable. While that motion was pending, the family relative informed CPS that she would be unable to care for Son long-term. DES consequently filed another motion for change in physical custody to Son's paternal aunt, which the juvenile court granted. But before Son had actually been placed with his paternal aunt, she told CPS that she also would be unable to care for him. DES contacted the family relative again and moved to change physical custody back to her, which the court likewise granted. By June 2013, CPS had learned that the family relative was unable to adopt Son or continue to care for him. CPS met with more family members and conducted an additional home-study, but ultimately found no other suitable placements for Son in Arizona.
¶4 Because DES was unable to find a suitable placement in Arizona, it moved to change physical custody to Son's paternal grandmother in Alaska. DES filed that motion on June 14, 2013, and mailed a copy to Mother's trial counsel the same day. The motion acknowledged that "Attorney for the Mother[ ] is opposed to this motion." The court signed an order granting DES's motion on July 16 and filed it the following day. Mother filed a response the same day the order was filed and requested oral argument at the next scheduled hearing.
¶5 The court reset the next scheduled hearing from July 29 to August 14, and at that hearing Mother first learned that Son was already in Alaska because the court had granted DES's latest motion. Trial counsel for Mother avowed that she did not know the court had signed the order, though did not contest that she had received DES's motion. The court explained that it had not granted a hearing on the motion because Mother filed her response after the time to respond had passed and by then the court had signed the order. On Mother's request, the court granted her the right to file a delayed appeal from the order and she timely did so.
DISCUSSION
¶6 Mother contends that the juvenile court violated her due process rights by ordering Son's physical custody changed over her objection and without allowing her an opportunity to argue.
¶7 Although this is an ongoing matter in the juvenile court, an order for change in physical custody is appealable. Maricopa Cnty. Juv. Action No. JD-500116, 160 Ariz. 538, 542-43, 774 P.2d 842, 846-47 (App. 1989) (holding that an order for change in physical custody is a final order and therefore appealable). "We review the trial court's decision regarding child custody for an abuse of discretion," Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003), but "[w]e review alleged constitutional violations de novo," State v. Hargrave, 225 Ariz. 1, 13, ¶ 42, 234 P.3d 569, 581 (2010).
¶8 Under Rule 46(C) of the Rules of Procedure for the Juvenile Court, a response to a motion served by mail is due within ten days of service. If known to the moving party, the motion must "state the positions of the other parties as to the issues raised in the motion." Ariz. R.P. Juv. Ct. 46(A). "The 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." Ariz. R.P. Juv. Ct. 46(C) (emphasis added).
¶9 Here, DES's motion properly stated Mother's objection. And the disjunctive language of Rule 46(C) clearly permitted the court to rule on the motion, despite the objection, once the time to file a response had passed. DES filed its motion on June 14 and mailed a copy to Mother on that date. Mother had until June 24 to respond, see id., but did not file her response until July 17, the same day the order was filed and at which point the court had already signed it. Indeed, Mother concedes in her opening brief that her "request for oral argument was filed outside the response time anticipated by the rule."
¶10 Nevertheless, Mother argues that it was reasonable to expect that the parties would address DES's motion at the next scheduled hearing and that she needed additional time to communicate with counsel because she was incarcerated. The juvenile court is not required to hold a hearing every time a party files a motion under Rule 46. See id. ("The court may rule on the motion, with or without a hearing . . . ."). And because Mother failed to request additional time during the proceedings below, despite ample opportunity, we decline to address this issue on appeal. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000) (holding that this court "generally do[es] not consider issues, even constitutional issues, raised for the first time on appeal").
Mother also relies on Rule 58(B)(1)(d) for her contention that the court violated due process by ruling on DES's motion without holding a hearing. Mother's reliance is misplaced. Rule 58(B)(1)(d) provides: "At a proceeding to review the disposition orders of the court, the court shall provide the [child's parent] notice[ ] of the review and the right to participate in the proceeding and any future proceedings." This rule governs review hearings, not rulings on motions (which are governed by Rule 46). In any event, the court fully complied with Rule 58 because fifteen days before the hearing, it issued two minute entries that provided the date and time of the hearing and ordered the Arizona Department of Corrections to make arrangements for Mother to appear telephonically.
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¶11 We conclude that the juvenile court did not violate Mother's due process rights. Mother was provided an adequate avenue to voice her objection to DES's motion at a meaningful time and in a meaningful manner, and her ability to present her argument by response to the motion adequately protected her liberty interest in parenting Son. See Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) ("Parents possess a fundamental liberty interest in the care, custody, and management of their children."); Maricopa Cnty. Juv. Action No. JS-734, 25 Ariz. App. 333, 339, 543 P.2d 454, 460 (1975) (explaining that due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections" (citation omitted)). The juvenile court acted well within its discretion when it granted DES's motion. The court had already ordered Son's physical custody changed three times between March 2012 and June 2013 without attaining a permanent placement, and CPS had been unable to locate any suitable alternatives in Arizona. Under those circumstances, the court properly found that placing Son with his paternal grandmother in Alaska was the least restrictive placement consistent with his needs. See A.R.S. § 8-514(B).
CONCLUSION
¶12 For the foregoing reasons, we affirm.