Opinion
No. 1 CA-JV 16-0442
06-06-2017
SCHUYLER D., Appellant, v. DEPARTMENT OF CHILD SAFETY, E.D., Appellees.
COUNSEL Gillespie, Shields, Durrant & Goldfarb, Phoenix By DeeAn Gillespie Counsel for Appellant Arizona Attorney General's Office, Mesa By Amanda L. Adams Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Juvenile Court in Maricopa County
No. JD528102
The Honorable Arthur T. Anderson, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Gillespie, Shields, Durrant & Goldfarb, Phoenix
By DeeAn Gillespie
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Amanda L. Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jennifer B. Campbell joined.
NORRIS, Judge:
¶1 Appellant Schuyler D. ("Father") appeals from orders entered by the juvenile court changing the case plan for his minor son, E.D., and denying his motion to consolidate E.D.'s dependency proceeding with a post-decree proceeding he filed in the family court ("family court proceeding"). On the record before us, the juvenile court did not abuse its discretion in entering these orders. Accordingly, exercising special action jurisdiction as we discuss below, we accept jurisdiction but deny the relief requested by Father.
DISCUSSION
I. Appellate Jurisdiction
¶2 As an initial matter, this court must determine whether it has jurisdiction to hear Father's appeal. Appellee, Department of Child Safety ("DCS"), argues the juvenile court's order changing E.D.'s case plan from family reunification to independent living is interlocutory, and thus, not appealable. Ariz. Rev. Stat. ("A.R.S.") § 8-235(A) (2014); Ariz. R.P. Juv. Ct. 103(A); Pima Cty. Juv. Action No. S-933, 135 Ariz. 278, 280, 660 P.2d 1205, 1207 (1982) (right to appeal exists from final order, one in which proceedings are ended, leaving open no question for further judicial action). Interlocutory orders, such as an order changing a child's case plan, do not conclusively define the rights or duties of a party and, therefore, are not generally final and appealable. Maricopa Cty. Juv. Action No. JD-5312, 178 Ariz. 372, 374, 873 P.2d 710, 712 (App. 1994) (final order "conclusively defines the rights and/or duties of a party," but court will consider "practical effect" of order on parent's rights) (citation and internal quotation omitted). Although Father argues the juvenile court's order changing E.D.'s case plan effectively terminated his parental rights and, therefore, should be deemed final for purposes of appeal, the order did not terminate his parental rights nor did it conclusively define his rights to E.D. Further, the juvenile court's order contemplated further proceedings in the dependency proceeding. Rita J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 512, 515, ¶ 8, 1 P.3d 155, 158 (App. 2000) (order contemplating further dependency
proceedings after permanency hearing "is not appealable, but rather, is interlocutory in nature"). Therefore, the order changing E.D.'s case plan is not a final appealable order.
¶3 Alternatively, Father asks we assume special action jurisdiction because E.D. is nearly 17 years old and, therefore, he has no "equally plain, speedy, and adequate remedy by appeal" because E.D. will soon age out of the DCS system. See Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass'n, Inc., 229 Ariz. 525, 531, ¶ 20, 278 P.3d 303, 309 (App. 2012) (availably of timely remedy is among factors considered in determining whether to exercise special action jurisdiction) (citation omitted). Under the circumstances presented here, we agree with Father that special action review of the juvenile court's order is appropriate. Cf. Rita J., 196 Ariz. at 515, ¶ 11, 1 P.3d at 158 (parent may seek special action review of interlocutory order in dependency proceeding). Thus, we have elected to treat Father's appeal as a special action and accept jurisdiction but, as we explain below, we deny relief.
II. A.R.S. § 8-521 Does Not Apply
¶4 Father argues the juvenile court should not have changed E.D.'s case plan to independent living because he is not eligible for independent living under A.R.S. § 8-521 (Supp. 2016). Father also argues that, under this statute, the court should not have changed the case plan without holding an evidentiary hearing. Section 8-521 is irrelevant here, however.
¶5 Section 8-521 defines the requirements for DCS's "independent living program for youths who are the subject of a dependency petition . . . ." A.R.S. § 8-521(A). Importantly, for a child to be subject to this program and the requirements of this statute, "the court must order such a disposition pursuant to § 8-845." A.R.S. § 8-521(D); A.R.S. § 8-845(A)(8) (Supp. 2016) ("court may enter orders awarding a dependent child . . . [t]o supervision under the independent living program established pursuant to § 8-521"). DCS did not seek nor did the juvenile court enter such an order when, at the September 29, 2016 status conference, it changed the case plan.
III. Evidentiary Hearing to Address Services
¶6 Father also argues the juvenile court should not have changed E.D.'s case plan without holding an evidentiary hearing to address whether DCS had failed to provide appropriate reunification services and to
consider what services it should provide in the future. Father did not request such a hearing, however.
¶7 The record reflects E.D.'s counsel and DCS informed the court at a July 22, 2016 report and review hearing that E.D. wanted an independent living case plan, and DCS "suggest[ed] that this should be a topic" for the next status conference hearing on September 29, 2016. Father and his counsel were present at that hearing and, although Father filed several motions before the September 29, 2016 status conference, he did not request an evidentiary hearing on any issue. Furthermore, at the September 29, 2016 status conference, the parties discussed the change in case plan and at no time, during the conference or after the court announced its ruling on the change in case plan, did Father request an evidentiary hearing. See Ariz. R.P. Juv. Ct. 58(D) (party seeking evidentiary hearing on contested issue shall file motion identifying issue to be litigated and requesting contested hearing).
¶8 In his reply brief, Father argues the juvenile court should have held an evidentiary hearing before changing the case plan because the evidence then before the court was "limited." Because Father did not raise that argument in his opening brief, it is not properly before us. Amfac Distrib. Corp. v. J.B. Contractors, Inc., 146 Ariz. 19, 27, 703 P.2d 566, 574 (App. 1985) (arguments not made in opening brief precluded from reply; improper to raise new issue in reply). Nevertheless, we briefly address the sufficiency of the evidence.
¶9 Before the September 29, 2016 status conference, the court reviewed two reports of the Court Appointed Special Advocate ("CASA"), one dated March 31, 2016, and the other dated September 22, 2016. The September 22, 2016 CASA report stated that E.D.'s belief he would not be forced back into the care of his parents was "significant . . . to his increasing stability and mental well being," and recommended changing the case plan because of E.D.'s age. The report supported the juvenile court's observation that "forcing [E.D.] to revisit either parent is going to set him back." Further, before the September 29, 2016 status conference, E.D. spoke privately to the court about changing his case plan to independent living and "to work on independent living skills . . . as soon as I can." See Ariz. R.P. Juv. Ct. 41(B); see also Bailey v. Bailey, 3 Ariz. App. 138, 142, 412 P.2d 480, 484 (1966) (court privileged to consider information secured in conference with child). In addition, E.D.'s guardian ad litem told the court E.D. trusted his current therapist, was making progress, and "functioning at the best level that I have seen . . . . [F]rom my perspective, reunification is not in his best interests and certainly not his desire . . . ." DCS agreed that a family reunification case plan was no longer "appropriate" and, when asked by
the court for its "suggestion as to the case plan," DCS recommended independent living.
¶10 On this record, the court did not abuse its discretion by changing the case plan without first holding an evidentiary hearing. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App. 2005) (primary consideration in dependency is best interests of child; court's order in dependency proceeding will not be disturbed unless no reasonable evidence supports it) (citations omitted).
IV. Father's Motion to Consolidate
¶11 Father argues the juvenile court abused its discretion in denying his request to consolidate the dependency proceeding with his motion in the family court proceeding to modify Mother's sole legal custody of E.D. We disagree. See Hancock v. McCarroll, 188 Ariz. 492, 495, 937 P.2d 682, 685 (App. 1996) (decision whether to grant a motion to consolidate is in the discretion of the superior court and will not be disturbed absent abuse of discretion). As the juvenile court correctly explained, the focus of the court in a dependency proceeding "is the child's well-being," and, more specifically, whether "the child's parents [are] capable of exercising proper care and control over the child," and these issues are different from issues in family court "concerning which parent is in the best position to make legal decisions" and determining parenting time, which are irrelevant to a dependency proceeding. See Dep't of Child Safety v. Beene, 235 Ariz. 300, 304, ¶ 9, 332 P.3d 47, 51 (App. 2014) (in dependency proceedings, the child's best interests are paramount) (citation and quotation omitted). Accordingly, as the juvenile court correctly concluded, "a dependency proceeding is not the appropriate forum in which to decide issues primarily reserved for a family court . . . ."
CONCLUSION
¶12 For the foregoing reasons, the juvenile court did not abuse its discretion in changing E.D.'s case plan to independent living and denying Father's motion to consolidate E.D.'s dependency proceeding with the family court proceeding. Therefore, we deny the relief requested by Father.