Opinion
No. 2 CA-JV 2018-0070
07-30-2018
MOLLY D., Appellant, v. ELAINE S., GARY S., AND M.D., Appellees.
COUNSEL The Huff Law Firm PLLC, Tucson By Daniel R. Huff Counsel for Appellant Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20170193
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED
COUNSEL The Huff Law Firm PLLC, Tucson
By Daniel R. Huff
Counsel for Appellant Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minor
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Molly D., the mother of M.D., born in August 2000, appeals from the juvenile court's April 2018 order adjudicating M.D. dependent. Molly does not challenge the court's conclusion that M.D. is a dependent child. Rather, she contends the court erred by failing to make specific factual findings in its written decision, as required by A.R.S. § 8-844(C) and Rule 55(E), Ariz. R. P. Juv. Ct., and she requests that we remand this matter to the juvenile court so that it may enter such findings. We affirm.
M.D., who is represented by counsel, and pro se appellees Elaine and Gary S. have not filed answering briefs, which we may treat as a confession of error. See Cecilia A. v. Ariz. Dep't of Econ. Sec., 229 Ariz. 286, ¶ 6 (App. 2012). Given the fact that M.D. will be eighteen in a matter of weeks and the fact that Molly is not challenging the court's finding that M.D. is dependent, in our discretion we choose not to do so. See id.
¶2 Elaine and Gary S., paternal grandparents of M.D., filed a private dependency petition, alleging that since March 2016, they had been caring for M.D., a child with special needs, pursuant to a revocable guardianship. They further alleged that Molly was unable to care for and safely parent M.D. because of mental health and medical issues. After a hearing, the juvenile court made some factual findings on the record at the end of the hearing, thereafter entering a written order adjudicating M.D. dependent as to Molly. In its written order, the court found Elaine and Gary had sustained their burden of proving by a preponderance of the evidence that M.D. was dependent as to Molly pursuant to A.R.S. § 8-201(15).
It appears that after the dependency disposition hearing, the grandparents were appointed as permanent guardians.
The juvenile court also adjudicated M.D. dependent as to her father, but he is not a party to this appeal.
Section 8-201(15)(a)(i) defines "dependent child" to include a child "[i]n need of proper and effective parental care and control and who has . . . no parent or guardian willing to exercise or capable of exercising such care and control." --------
¶3 Molly contends the juvenile court did not enter factual findings in its written order, violating § 8-844(C) and Rule 55(E). Relying, in part, on this court's recent decision in Logan B. v. Department of Child Safety, 791 Ariz. Adv. Rep. 37 (Ct. App. May 24, 2018), she asks that we remand this matter to the juvenile court and direct it to enter the required findings.
¶4 In Logan B., this court vacated the juvenile court's order terminating the appellant father's parental rights to his two minor children because the "final order was devoid of any factual findings to support the legal conclusions about the statutory ground for termination or factual findings to justify that termination was in the children's best interests." 791 Ariz. Adv. Rep. 37, ¶¶ 2, 6, 22. We held that, "even if the [juvenile] court makes oral findings of fact on the record, a written termination order that recites only conclusions of law regarding the statutory grounds for termination and best interests is insufficient as a matter of law" because it does not comply with A.R.S. § 8-538(A) and Rule 66(F)(2)(a), Ariz. R. P. Juv. Ct., which require a termination order to contain written findings. Id. ¶¶ 1, 14.
¶5 Molly concedes she did not ask the juvenile court to enter factual findings and acknowledges that this generally waives such a claim as an issue on appeal. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 21 (App. 2007). But she notes that, in Logan B., we rejected the Department of Child Safety's argument that the father had waived his claim in that case by raising it for the first time on appeal. 791 Ariz. Adv. Rep. 37, ¶¶ 10-11. In Logan B., we distinguished our finding of waiver in Christy C. on the basis that in that case the court had made at least some factual findings in its final order, although the parent had argued those findings were insufficient. Id. ¶ 10. In contrast, in Logan B., we found the court's order contained only conclusions of law, without stating any factual findings. Id. ¶ 11.
¶6 Even were we to agree that Christy C. is distinguishable on the same ground here, this court acknowledged in Logan B. that "[t]he waiver doctrine is not 'an unalterable rule'"; rather, it is for the appellate court to determine in the exercise of its discretion whether to apply it. Id., quoting Reid v. Reid, 222 Ariz. 204, ¶ 16 (App. 2009). In exercising that discretion in Logan B., this court emphasized that the absence of any factual finding was "a reoccurring problem" and a matter of great public importance. Id. Exercising our discretion here, we deem the issue waived for several reasons.
¶7 First, this is a dependency appeal, not a severance. But even assuming § 8-538(A) and Rule 66(F)(2)(a), which apply to termination proceedings, are wholly analogous to § 8-844(C) and Rule 55(E), which apply to dependency proceedings, and assuming, too, that the need for factual findings is equally compelling for both kinds of orders, M.D. will be eighteen years old in a few weeks. The dependency will end by operation of law, rendering the issue of findings insignificant, if not moot, particularly given that Molly is not challenging the adjudication on any other basis, only the juvenile court's compliance with the statutory and procedural requirements.
¶8 Moreover, the juvenile court did make some factual findings on the record at the end of the hearing. The court addressed Molly directly and stated, "the child does have special needs, no one disagrees with that[,] . . . pretty intensive maintenance." The court added, "I find that your physical health as well as there's evidence of mental health [issues] that causes you not to be able to provide for the child in the way the child needs to be provided for." We agree that oral findings of fact do not satisfy the requirements of the rule and statute. See § 8-844(C); Ariz. R. P. Juv. Ct. 55(E); cf. Logan B., 791 Ariz. Adv. Rep. 37, ¶ 1. But Molly cannot say the lack of written findings left her unable to evaluate the basis for the court's adjudication.
¶9 In addition, the juvenile court's order was issued before this court decided Logan B. We are not concerned, therefore, that this is a recurring problem of statewide significance that is likely to persist. See Logan B., 791 Ariz. Adv. Rep. 37, ¶ 11. Finally, as this court acknowledged in Logan B., sending cases involving juveniles back for findings necessarily delays the progress of these appeals, id. n.5, which we must process expeditiously, see Ariz. R. P. Juv. Ct. 103(C) (requiring appellate court to give juvenile appeals precedence over all but extraordinary writs or special actions). Delaying finality in this case would be particularly unhelpful, given the short period remaining before M.D. turns eighteen.
¶10 For these reasons, we conclude that Molly waived the issue she has raised on appeal, and it is without merit in any event. We affirm the juvenile court's April 2018 order adjudicating M.D. dependent.