Opinion
No. 2 CA-JV 2016-0148
03-16-2017
BRENDAN B., Appellant, v. RAQUEL N. AND L.N., Appellees.
COUNSEL Richard A. Beck, Sahuarita Counsel for Appellant Pima County Office of Children's Counsel, Tucson By John Walters Counsel for Appellee L.N.
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NOT FOR PUBLICATION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. JD20150136
The Honorable Geoffrey L. Ferlan, Judge Pro Tempore
AFFIRMED
COUNSEL
Richard A. Beck, Sahuarita
Counsel for Appellant
Pima County Office of Children's Counsel, Tucson
By John Walters
Counsel for Appellee L.N.
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Miller concurred.
STARING, Presiding Judge:
¶1 Appellant Brendan B. challenges the juvenile court's order placing L.N. in the care of her paternal grandmother, Raquel N., and granting both Raquel and Brendan in loco parentis rights and visitation. We lack jurisdiction over some of Brendan's claims and find no error as to the remaining ones, and we therefore affirm.
¶2 In February 2015, Raquel filed a dependency petition after L.N.'s father, Daniel, died in an automobile accident. L.N.'s mother's parental rights had been terminated in 2012. Raquel requested "emergency guardianship" of L.N., and the juvenile court entered temporary orders granting her temporary legal custody, but did not indicate who should have physical custody. Brendan moved to intervene in the proceeding, and for clarification as to physical custody, explaining she was Daniel's "significant other" and had been raising L.N. with him since 2008. She asked that the proceeding be dismissed on the ground that L.N. was not dependent. The court amended the temporary orders to grant physical, as well as legal, custody to Raquel. Brendan thereafter filed a motion for return of L.N., citing Rule 59, Ariz. R. P. Juv. Ct.
¶3 The juvenile court granted Brendan's motion to intervene "on a limited basis with respect to placement and visitation" and consolidated the juvenile dependency proceeding with a "Title 25 Petition for Third-Party Rights" she had filed. In May 2015, it adjudicated L.N. dependent and affirmed Raquel's legal
and physical custody of her. The court held dependency review hearings and various other motion hearings over the following year.
¶4 In July 2016, the juvenile court denied Brendan's motion for placement. It further ruled, as to the third-party action, that both Raquel and Brendan stood in loco parentis to L.N. pursuant to A.R.S. § 25-409, but it determined it was in L.N.'s best interests to award sole legal decision making authority to Raquel. It ordered visitation with both parties, with L.N. "primarily resid[ing]" with Raquel, but having visitation with Brendan every other weekend and on various holidays.
¶5 On appeal, Brendan first contends "the [juvenile] court erred in finding L.N. dependent." But the court adjudicated L.N. dependent in May 2015. The time for appeal of that ruling long ago passed, and we therefore lack jurisdiction to address it. See Ariz. R. P. Juv. Ct. 104(A) (appeal must be filed within fifteen days of final order); Lindsey M. v. Ariz. Dep't of Econ. Sec., 212 Ariz. 43, ¶ 8, 127 P.3d 59, 61 (App. 2006) (dependency disposition order "is a final, appealable order").
¶6 Likewise, we lack jurisdiction to consider Brendan's claim that the juvenile court erred in limiting her intervention in the proceedings to matters of placement. "Any denial of intervention should be regarded as an appealable final order." Bechtel v. Rose, 150 Ariz. 68, 71, 722 P.2d 236, 239 (1986), quoting 7A C. Wright & A. Miller, Federal Practice and Procedure § 1923, at 627 (1972). The ruling that Brendan addresses in her argument and that limited Brendan's intervention in this matter was entered in March 2015. Thus, the time for appeal from that ruling has also passed, leaving us without jurisdiction. See Ariz. R. P. Juv. Ct. 104(A).
¶7 Brendan additionally challenges the juvenile court's failure to appoint a guardian ad litem (GAL) for L.N. until five months into the proceedings. Brendan requested that the court appoint a "best-interests attorney or court appointed advisor" for L.N. The Foster Care Review Board also recommended that a Court Appointed Special Advocate (CASA) and guardian ad litem be appointed for L.N. As part of the temporary orders set forth in
February 2015, the court appointed the Office of Children's Counsel (OCC) to represent L.N. and appointed "the Court Appointed Special Advocate (CASA) Program Coordinator for Pima County to act as guardian ad litem for" her. OCC appeared on L.N.'s behalf at the preliminary protective hearing and throughout the proceedings.
¶8 The juvenile court referred the matter for appointment of a CASA in March 2015, and at that time the court allowed Brendan "leave to file a future motion requesting" a GAL. In June, no CASA had been appointed, but the court indicated it would confirm that its earlier referral had been received and again denied appointment of a GAL. In August, a CASA was appointed for L.N., and in September a GAL was appointed as well.
¶9 According to Brendan, "[h]ad a GAL and CASA been appointed sooner important light may have shed on the issue of the sudden disaffection of L.N. for Brendan." However, on the record before us, the CASA did raise concerns about L.N.'s disaffection and other issues, and the juvenile court specifically noted those concerns in its ruling. Likewise, the court addressed evidence from the two psychologists treating L.N. concerning her removal from Brendan's care.
¶10 Because we lack jurisdiction to address Brendan's claims about the dependency and the motion to intervene, our review of this issue is limited to the context of the juvenile court's July 2016 ruling. The claim fails, however, even assuming Brendan has standing to assert a claim that a GAL should have been appointed. See In re Pima Cty. Juv. Severance Action No. S-113432, 178 Ariz. 288, 291, 872 P.2d 1240, 1243 (App. 1993) (finding father lacked standing to assert conflicts of interest between siblings required appointment of independent counsel or guardian ad litem for children). On the record before us, it appears the court ordered a CASA appointed early in the process; the delay in appointment was not based on the court's refusal to appoint a CASA; rather, it was unclear if the order had been received, so that a specific CASA was not assigned until later in the proceedings. And Brendan has cited nothing to suggest a court is required to appoint a GAL in addition to a CASA in this context. Cf. A.R.S. § 8-522(A) ("The presiding
judge of the juvenile court . . . may appoint an adult as a special advocate to be the guardian ad litem for a child who is the subject of a dependency action."). Furthermore, in view of the questions raised by the CASA and the psychologists about the course of L.N.'s relationship with Brendan after she was placed with Raquel, Brendan has provided nothing more than speculation that appointment of a GAL would have added additional information.
¶11 We also reject Brendan's claim that the juvenile court "ignored the findings and recommendations of the foster care review board." Insofar as this claim relates to the court's dependency ruling, we lack jurisdiction to consider it. But in the context of the court's later ruling, it is clear the court considered the concerns raised about L.N.'s lack of contact with Brendan while in Raquel's care.
¶12 Finally, Brendan maintains the juvenile court abused its discretion "because no reasonable trier of fact could have found Raquel to be credible." Her argument, however, is a request that this court reweigh the evidence presented to the juvenile court, which we will not do. See Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 16, 107 P.3d 923, 928 (App. 2005) (reweighing evidence not function of appellate court, which determines only whether substantial evidence supports ruling). Brendan asserts that "the evidence . . . only supported the existence of an in loco parentis relationship [with Raquel] occurring after March 2015." But, pursuant to A.R.S. § 8-845(A)(2), a court may "enter orders awarding a dependent child . . . [t]o a grandparent." Thus, even apart from its in loco parentis finding, the court was authorized to place L.N. with Raquel in the absence of a determination that such a placement was not in L.N.'s best interests. See id. And Brendan does not meaningfully dispute that an in loco parentis relationship now exists.
¶13 For all these reasons, we affirm the juvenile court's order.