Opinion
2 CA-CV 2023-0086
09-29-2023
In re the Guardianship of Adrian R., a Minor v. Rigo Rosas, Respondent/Appellee. Michelie B. Lopez, Petitioner/Appellant,
Michelie B. Lopez, Tucson In Propria Persona. The Law Office of Lauri J. Owen PLLC, Tucson By Lauri J. Owen Counsel for Respondent/Appellee.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. GC20190761 The Honorable Julia Connors, Judge Pro Tempore.
Michelie B. Lopez, Tucson In Propria Persona.
The Law Office of Lauri J. Owen PLLC, Tucson By Lauri J. Owen Counsel for Respondent/Appellee.
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, CHIEF JUDGE.
¶1 In this probate proceeding, Michelie Lopez appeals from the superior court's order terminating her guardianship of minor A.G.R. She argues the court erred by dismissing the guardianship based on A.G.R.'s parents' withdrawal of their consent to the guardianship and by terminating the guardianship without a hearing. As we explain, we lack jurisdiction over the appeal but nevertheless treat it as a special action and deny relief.
Factual and Procedural Background
¶2 In early 2020, the superior court granted Lopez's petition for appointment as guardian for minors A.C.R. (born in May 2004), R.A.R. (born in September 2005), and A.G.R. (born in April 2011). The children's father, Rigo Rosas ("Father"), who was set to be incarcerated, consented to the appointment.
¶3 In November 2020, Lopez filed a request to terminate her guardianship of A.C.R. and R.A.R., stating they had run away to live with their maternal grandmother in New Mexico. In December 2020, Cassiopeia Estrada ("Mother") filed a petition to terminate the guardianship over A.G.R. and return him to her, claiming Father had consented to the guardianship "unbeknownst" to her. At a January 2021 hearing, Mother revoked her consent to the guardianship as to A.C.R. and R.A.R., and the superior court terminated Lopez's guardianship over them. The court denied the request as to A.G.R. because there was no pending petition to appoint a successor guardian.
¶4 In February 2023, Father filed a petition seeking to terminate Lopez's guardianship of A.G.R. and appoint his sister as the successor guardian. He stated that the Arizona Department of Child Safety (DCS) had become "involved with this case at some point" after Lopez exposed A.G.R. to domestic violence. On February 17, the superior court discharged Lopez as guardian, vacated all future hearings, and ordered the file be closed because the juvenile court had issued a ruling in a separate cause number "that involves custody issues regarding the child that is currently on appeal" and that the juvenile court "has exclusive jurisdiction over custody issues involving the child." Father nevertheless requested a hearing on his motion to terminate Lopez's appointment, arguing DCS had not taken custody of A.G.R. and the juvenile court had "no authority" over the case because the juvenile court had denied Lopez's private severance of Mother and Father's parental rights. The court rescinded its order terminating the guardianship in a February 23 order.
¶5 Father then renewed his request to dismiss the guardianship based on both parents' withdrawn consent and his filing of a private dependency action. The superior court dismissed the case in a signed order filed on March 1. Lopez filed a notice of appeal of that order.
Jurisdiction
¶6 Although no party raised the issue, we have an independent duty to determine whether we have jurisdiction over an appeal. See Dabrowski v. Bartlett, 246 Ariz. 504, ¶ 13 (App. 2019). An appeal may be taken from "a judgment, decree or order entered in any formal proceedings under title 14," like the March 1 order from which Lopez filed a notice of appeal. A.R.S. § 12-2101(A)(9). But such an order must be certified as final pursuant to Rule 54, Ariz. R. Civ. P., to be appealable. In re Guardianship of Sommer, 241 Ariz. 308, ¶ 11 (App. 2016). The March order lacks finality language, so Lopez's notice is premature and a nullity. See McCleary v. Tripodi, 243 Ariz. 197, ¶¶ 7-8 (App. 2017).
¶7 After filing her notice of appeal, on March 31, Lopez filed three additional motions in the superior court challenging the termination order: a motion to request an expedited hearing, a motion for reconsideration, and an answer and objections to the petition to terminate her guardianship. On April 5, the court denied the motion to reconsider and motion for hearing.
¶8 Because our record did not contain any final order, this court suspended Lopez's appeal on April 27 and revested jurisdiction in the superior court for it to enter such an order. The superior court amended its February 17, February 23, and April 5 orders to include language pursuant to Rule 54(c) stating "there are no further matters which remain pending." The court did not, however, add the necessary finality language to the March 1 order from which Lopez had appealed. On the record before us, we cannot say the court has properly entered a final, appealable order.
¶9 In the February 23 order the superior court rescinded its February 17 order, and its April 5 order addressed Lopez's motion for reconsideration and motion for hearing, but was silent as to her answer and objections. And, importantly, none of those three orders actually disposed of the pending termination petition. See Baker v. Bradley, 231 Ariz. 475, ¶ 9 (App. 2013) (final judgments "dispose of all claims and parties"). We cannot treat the April 5 order as the final judgment and, in turn, review the March order, see Decola v. Fryer, 198 Ariz. 28, n.2 (App. 2000) ("interlocutory orders are subsumed into the final judgment"), because the April 5 order was not one from which an appeal could lie, see Engineers v. Sharpe, 117 Ariz. 413, 416 (1977) (motion for reconsideration constitutes special order made after judgment); In re Marriage of Dorman, 198 Ariz. 298, ¶ 3 (App. 2000) (special order made after judgment generally not appealable unless it "raise[s] different issues than those that would be raised by appealing the underlying judgment"). Consequently, Lopez's notice of appeal-filed before the April 5 order-did not, and indeed could not at the time of filing, designate the April 5 order as one being appealed. See Ariz. R. Civ. App. P. 8(c)(3).
¶10 Additionally, even though the April 5 order included finality certification, it does not appear to be a final order. Also pending were Lopez's answer and objections. See Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 221, ¶¶ 6, 11 (App. 2014) (Rule 54(c) certification must be substantively correct). Further affecting the order's finality is whether the court needed to readdress its denial of Lopez's two other motions. See, e.g., Ariz. R. Probate P. 15(e) (person opposing relief requested in petition should file response or motion "no later than 7 calendar days before the initial hearing on the petition"; written response must be served on all other parties). These questions seemingly implicate the due process issues discussed by the parties on appeal.
The superior court's only rationale for denying Lopez's motions was that it lacked jurisdiction to consider them due to her notice of appeal. As explained above, that was not the case.
¶11 Given these irregular circumstances, in the interests of judicial efficiency, we see no benefit in the superior court wading through the procedural morass again. It has made its ruling on the termination issue, the parties have briefed and argued the issues, and we have already attempted to suspend the appeal and revest jurisdiction for the court to certify a final judgment. Thus, we sua sponte exercise our discretion to accept special action jurisdiction and consider the merits of the claims. See A.R.S. § 12-120.21(A)(4); Ariz. R. P. Spec. Act. 1(a); State v. Bayardi, 230 Ariz. 195, ¶ 7 &n.4 (App. 2012) (appeal treated as special action when parties appealed from non-final superior court minute entry); Danielson v. Evans, 201 Ariz. 401, ¶ 35 (App. 2001) (after finding appellate jurisdiction lacking, court sua sponte accepted special action jurisdiction).
Merits Discussion
¶12 Lopez argues the superior court erred by terminating her guardianship of A.G.R. because Father's petition had "no meaningful purpose other than to interfere" with her custody of A.G.R. We review the superior court's order terminating a guardianship for an abuse of discretion. In re Guardianship of Kelly, 184 Ariz. 514, 518 (App. 1996); see also In re Cosden's Estate, 12 Ariz.App. 88, 89 (1970) ("The court's discretion to remove a guardian is not to be exercised arbitrarily or capriciously but is a legal discretion to be exercised with due regard to legal rights of all concerned.").
Lopez further asserts that Father relinquished his full parental rights and consented to A.G.R.'s adoption. This is unsupported by the record. Although Lopez testified at a hearing in February 2020 that Father had given her "permission to adopt" the children, the record does not contain any consent to adoption "filed with the court" as required by A.R.S. § 8-106(A). She also argues the superior court incorrectly concluded the juvenile court "had exclusive jurisdiction over custody issues," but fails to acknowledge that the court corrected the record and rescinded the order in which it made that conclusion. Lopez also mentions a party's erroneous use of confidential documents, but she has failed to meaningfully develop her argument or provide citations to the record and supporting authority. Accordingly, we conclude she has waived this argument. See Harris v. Warner, 255 Ariz. 29, n.1 (2023) (arguments not developed in special action deemed waived); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (arguments not developed on appeal deemed waived); Ariz. R. P. Spec. Act. 7(e) (petition must contain "argument containing petitioners' contentions with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and appropriate references to the record"); Ariz. R. Civ. App. P. 13(a)(7) (requiring opening brief to contain "supporting reasons for each contention . . . with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies").
¶13 Lopez's argument fails for two reasons. First, it is not supported by the record, which demonstrates that Father had filed his petition on the basis that DCS had become involved because Lopez exposed A.G.R. to domestic violence. Second, and more importantly, when a guardianship of a minor is based on parental consent which is later withdrawn, the "proper procedure" for the probate court is to terminate the guardianship. In re Guardianship of Mikrut, 175 Ariz. 544, 548 (App. 1993). Thus, we cannot say the court erred in terminating Lopez's guardianship upon the withdrawal of both parents' consent.
¶14 Lopez next argues the superior court violated her right to procedural due process by failing to hold a hearing before terminating her guardianship of A.G.R. Section 14-5212(C), A.R.S., which governs the resignation or removal of a guardian, allows termination of a guardianship only "[a]fter notice and a hearing" on the petition. Here, although Lopez received notice of Father's petition, the court did not hold a hearing before terminating the guardianship. Nevertheless, Lopez has not demonstrated that she has suffered any prejudice from that failure. See In re Schade's Estate, 87 Ariz. 341, 349 (1960) ("Where a technical error has occurred but has not interfered in the application of the substantive rules of law which correctly measure the rights of the . . . litigant, we will not reverse."). Notably, the court correctly terminated the guardianship based on the parents' withdrawn consent, and a hearing would not have changed that outcome. See Guardianship of Mikrut, 175 Ariz. at 548.
¶15 Father requests an award of attorney fees under A.R.S. § 12- 349(A)(1) and (2), which requires a court to assess reasonable attorney fees against a party if it brings or defends a claim "without substantial justification" or "solely or primarily for delay or harassment." A claim or defense is without substantial justification if it "is groundless and is not made in good faith." § 12-349(F). To the extent Father relies on Lopez's conduct and arguments in separate cases also involving A.G.R.'s custody, we do not consider them as a basis for attorney fees in this proceeding. See generally § 12-349 (bringing or defending "a claim" in a singular "civil action commenced or appealed"). Although Lopez's arguments were unsuccessful, we disagree they were brought without substantial justification or primarily for delay or harassment. Father also cites A.R.S. § 25-324 to support his request, but provides no argument or authority that it applies to this guardianship proceeding which-as he acknowledges-is governed by title 14, not title 25, of our statutes. In any event, because we conclude Lopez's positions on appeal were not groundless, we similarly deny Father's request under that statute. Accordingly, we deny Father's request for attorney fees. Nevertheless, as the prevailing party, he is entitled to his costs upon his compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-341; Ariz. R. P. Spec. Act. 4(g).
Disposition
¶16 We accept special action jurisdiction and deny relief. We affirm the superior court's March 1 order terminating Lopez's guardianship of A.G.R.