Opinion
2 CA-JV 2023-0043
06-08-2023
In re Dependency of M.R.,
Richard R., Gelliana R., and Marcella R., Chandler In Propria Personae Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100JD201700116 The Honorable Delia R. Neal, Judge
Richard R., Gelliana R., and Marcella R., Chandler In Propria Personae
Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Vice Chief Judge Staring authored the decision of the Court, in which Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Richard R., Gelliana R., and Marcella R. appeal from orders of the juvenile court denying their motions to set aside the judgment and for new trial. We lack jurisdiction, and therefore dismiss the appeal.
¶2 Marcella, born November 2000, was adjudicated dependent as to her parents, Richard and Gelliana, in September 2017. This court affirmed the dependency as to Richard on appeal. Richard R. v. Dep't of Child Safety, No. 2 CA-JV 2017-0165 (Ariz. App. Feb. 6, 2018) (mem. decision). The juvenile court dismissed the dependency in October 2018, shortly before Marcella turned eighteen.
¶3 In June 2021, appellants filed a motion for relief from judgment, citing Rule 60 of the Federal Rules of Civil Procedure and alleging "fraud, misconduct [and] misrepresentation" by the Department of Child Safety and various other agencies. The juvenile court denied the motion, determining it lacked jurisdiction of the matter because Marcella was now over eighteen years old and the dependency had been dismissed in 2018.
¶4 Appellants thereafter attempted to file a motion pursuant to Rule 59, Ariz. R. Civ. P., apparently challenging the juvenile court's ruling on their Rule 60 motion. The Clerk of the Pinal County Superior Court declined to file the motion because it lacked one or more original signatures. Appellants then filed a "notice of errata," which included an amended Rule 59 motion. The court again determined it lacked jurisdiction due to the dismissal of the dependency and Marcella's age. Appellants appealed, and this court affirmed the juvenile court's order. Richard R., Gelliana R., &Marcella R. v. Dep't of Child Safety, No. 2 CA-JV 2021-0141 (Ariz. App. Apr. 12, 2022) (mem. decision).
¶5 In January 2023, appellants filed a new motion relying on Rule 60, Ariz. R. Civ. P. On January 20, the juvenile court denied the motion, again noting its lack of jurisdiction, and explaining that appellants' previous motion had been denied "for the same reasons . . . and that denial was affirmed" on appeal. On February 10, appellants filed a Rule 59 motion "for retrial on [the] Rule 60 motion." The court denied the motion on February 22. Appellants filed a notice of appeal on March 1, attempting to challenge both the January and February rulings.
¶6 As an initial matter, in a juvenile proceeding, a motion to set aside a judgment should be made pursuant to Rule 318, Ariz. R. P. Juv. Ct., not under Rule 60. As the state points out, appellants' appeal from the January ruling on their motion to set aside is untimely. A notice of appeal must be filed "no later than 15 days after entry of the final order from which the appeal is taken." Ariz. R. P. Juv. Ct. 603(a)(1)(A). Appellants' notice was filed approximately six weeks after the juvenile court's January ruling on the motion.
¶7 Appellants contend, however, that their appeal is timely because they "timely filed [a] Rule 59 motion" and the juvenile court's "ruling [was] not appealable until [the] last final order disposing" of the "last motion." The Rules of Procedure for the Juvenile Court do not authorize the filing of a motion for new trial in a dependency proceeding. See Yavapai Cnty. Juv. Action No. J-9365 , 157 Ariz. 497, 501-02 (App. 1988). Furthermore, such a motion does not extend the time for appeal in a juvenile proceeding. Maricopa Cnty. Juv. Action No. JS-1109 , 26 Ariz.App. 518, 518 (1976). Rule 9(e)(1), Ariz. R. Civ. App. P., on which appellants rely, does not apply. See Ariz. R. P. Juv. Ct. 602(i). And the relevant juvenile rule does not contain a comparable provision. See Ariz. R. P. Juv. Ct. 603(a)(3).
¶8 Additionally, although the appellants' notice of appeal was filed within fifteen days of the juvenile court's February order denying their motion for new trial, we lack jurisdiction to consider that ruling as well. Our jurisdiction in juvenile matters is controlled by the rules of procedure. See Ariz. Const. art. VI, § 9 (jurisdiction of appellate court "as provided by law"); A.R.S. § 8-235(A) (appeal as provided in rules of procedure); see also Ariz. Dep't of Econ. Sec. v. Don, 165 Ariz. 407, 408-09 (App. 1990). Because the rules do not provide for a motion for new trial, the court lacked jurisdiction to grant it. See Don, 165 Ariz. at 408-09 (no jurisdiction to enter order not provided by rules); cf. Mark Lighting Fixture Co. v. Gen. Elec. Supply Co., 155 Ariz. 27, 31-32 (1987) (time limit for filing motion for new trial under civil rules are jurisdictional); State v. Wagstaff, 161 Ariz. 66, 70 (App. 1988) (time limit on motion for new trial in criminal rules jurisdictional). We therefore also lack jurisdiction over an appeal from such an order. See In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 12 (App. 2012) (order not appealable when court lacked jurisdiction to enter it).
¶9 For the reasons stated above, we dismiss the appeal for lack of jurisdiction.