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					IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

ROSITA P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY; EMELIA G., Appellees.

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1 CA-JV 07-0017 DEPARTMENT E MEMORANDUM DECISION (Not for Publication – Ariz. R.P. Juv. Ct. 88(G); ARCAP 28) FILED 8-2-07

Appeal from the Superior Court in Maricopa County Cause No. JD 15105 The Honorable R. Jeffrey Woodburn, Judge Pro Tem AFFIRMED

Terry Goddard, Arizona Attorney General By Kathleen Skinner, Assistant Attorney General Attorneys for Appellee Thomas A. Vierling, Vierling Law Offices Attorneys for Appellant Bruce Peterson, Office of the Legal Advocate By Pamela J. Eaton, Deputy Legal Advocate Guardian ad Litem K E S S L E R, Judge ¶1 juvenile Appellant-Mother court’s order Rosita P. (“Mother”) a

Mesa

Phoenix

Phoenix

appeals

the

dismissing

dependency

petition,

granting Emillo G. (“Father”) temporary custody of their child, Emelia G. (“Daughter”), and denying Mother visitation. 1 For the

following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Child The Arizona Department of Economic Security (“ADES”), Protective Services Division, took fifteen-year-old

Daughter into temporary physical custody because Mother failed to provide the basic necessities of life, including stable

housing.

Moreover, Mother had a substance abuse problem and

Daughter saw her use crack cocaine. ¶3 Before ADES’s involvement, Mother and Daughter argued

at a Burger King and Mother walked out instructing Daughter not to follow her. Consequently, Daughter lived at a family

friend’s house.

Several times, Mother tried to pick Daughter up

at the friend’s house, but was so intoxicated and disruptive that Daughter did not want to leave with her. friends Mother. were too concerned Phoenix to allow Additionally, the to leave with these

Daughter

After

the

Police

Department

reported

events to ADES, the Department filed a dependency petition.1 ¶4 The separate dependency petition alleged Daughter was

dependent as to Mother and Father under Arizona Revised Statutes (“A.R.S.”) section 8-201(13) (2007). It claimed Mother

neglected Daughter and could not parent her for the reasons
1

Because Daughter is a member of the Navajo Nation, the court gave the tribe appropriate notice of the dependency petition in accordance with the Indian Child Welfare Act (“ICWA”), 25 United States Code (“U.S.C.”) section 1912(a). Therefore, Daughter’s tribal membership is not an issue on appeal. 2

stated

above.

Furthermore,

the

petition

alleged

Father

abandoned Daughter for approximately eight years by failing to maintain a normal parental relationship with the child without just cause. ADES removed Daughter from her friend’s house and

placed her in a shelter. ¶5 At the initial dependency hearing, the juvenile court

gave Mother a Form I, Notice to Parent in Dependency Action (“Form I”), informing her of her rights and duties, including that her failure to appear at a pretrial conference could result in the court proceeding in her absence and a waiver of her rights. denial. Mother contested the petition, and the court entered a Mother failed to appear at the pretrial conference, and The juvenile

ADES requested to proceed against her in absentia.

court granted ADES’s motion and found Daughter dependent as to Mother. ¶6 A separate dependency adjudication hearing was held as At the

to Father, but neither Mother nor her attorney attended.

hearing, ADES moved to dismiss the dependency petition as to Father, requested that the court assign a family court case number, custody.2 and that Daughter be placed in Father’s temporary

Daughter’s attorney, also the guardian ad litem, said

2

Under Rule 8(C) of the Juvenile Court Rules, the court shall make findings pursuant to the standards and burdens of proof required by the ICWA. In termination proceedings, certain efforts shall be made to guarantee rehabilitative programs have 3

the child wanted to live with Father. Father agreed with ADES’s requests.

The guardian ad litem and ADES reported Father was

listed on Daughter’s birth certificate and that he was legally presumed to be her father. ¶7 nor her Daughter’s attorney pointed out that neither Mother attorney attended the hearing. However, both the

guardian ad litem and ADES agreed this was not a problem because Mother could later contest the temporary custody order in the family court matter. Mother’s attorney. ¶8 Mother’s attorney appeared telephonically to object on As a matter of fairness, the court called

Mother’s behalf, arguing it was inappropriate for the court to enter a temporary custody order without giving Mother notice. She also stated that even though Father was named on Daughter’s birth certificate, Mother claimed he was not Daughter’s

biological father, and it was inappropriate to place Daughter in Father’s custody. She requested that the court continue the

hearing so Mother could be heard. ¶9 the court ADES argued because it was a dependency hearing and was dismissing the petition, Mother would not be

prejudiced in any manner because Mother could later adjudicate any custody issues in family court. been provided to prevent the breakup of the Indian family under 25 U.S.C. § 1912(d). Because the juvenile court only granted Father temporary custody, 25 U.S.C. § 1912(d) does not apply. 4

¶10

The juvenile court granted ADES’s requests by opening

and taking temporary jurisdiction over the family court case, giving Father temporary custody of Daughter, denying Mother’s motion for temporary visitation, and then dismissing the

dependency case. the juvenile

Mother filed a timely notice of appeal from decision. This court has jurisdiction

court’s

under A.R.S. sections 8-235 (2007), 12-120.21(A)(1) (2003), and 12-2101(B) (2003).3 Issues and Standard of Review ¶11 it denied On appeal, Mother argues the juvenile court erred when her a continuance, opened a family court cause,

granted temporary custody to Father, denied Mother visitation, and dismissed the dependency petition, all without notice to Mother. ADES argues Mother had notice and the juvenile court

did not err in entering a family court temporary custody order because family it had the authority and to to consolidate custody dependency orders and

court

matters,

enter

under

dependency matters. ¶12
3

“Because this appeal involves legal issues requiring

This case comes to us in a curious procedural setting because Mother appeals the court’s order dismissing the dependency petition. We have jurisdiction over such an appeal under A.R.S. § 8-235(A) because the order is a final order from the juvenile court, and Mother is an aggrieved party because the court’s order as to custody affected her rights. Pima County, Juv. Action No. B-9385, 138 Ariz. 291, 293, 674 P.2d 845, 847 (1983); Yavapai County Juv. Action No. J-8545, 140 Ariz. 10, 12, 680 P.2d 146, 148 (App. 1984). 5

interpretation of statutes and application of those statutes to the juvenile court’s actions, our review is de novo.” Ariz.

Dep’t of Econ. Sec. v. Ciana H., 191 Ariz. 339, 341, ¶ 11, 955 P.2d 977, 979 (App. 1998). We, however, review the juvenile

court’s decision to dismiss the dependency petition and motion for a continuance for an abuse of discretion. See Yuma County

Juv. Action Nos. J-90-283, J-90-284, 168 Ariz. 497, 498, 815 P.2d 424, 425 (App. 1991); see also Avila v. Ariz. Dep’t of Econ. Sec., 160 Ariz. 246, 249, 772 P.2d 600, 603 (App. 1989). If the record supports the ruling, the juvenile court’s decision will not be disturbed. Leslie C. v. Maricopa County Juv. Court,

193 Ariz. 134, 135, 971 P.2d 181, 182 (App. 1997). Analysis I. Due Process ¶13 Mother argues the juvenile court violated her due

process rights because it did not provide her with notice of the motion to dismiss the dependency and the request by Father’s attorney for temporary custody, and failed to grant her a

continuance.

Additionally,

Mother

argues

the

juvenile

court

abused its discretion and misapplied the law when it issued temporary custody orders that were unsupported by the pleadings. ¶14 A State cannot deny a parent’s fundamental right to

control and custody of his children without due process of law. J.D.S. v. Franks, 182 Ariz. 81, 95, 893 P.2d 732, 746 (1995). 6

“Due process” includes reasonable notice affording the parent an opportunity to present objections in proceedings. Maricopa

County Juv. Action No. JS-501904, 180 Ariz. 348, 355, 884 P.2d 234, 241 (App. 1994); Pima County Juv. Action No. S-949, 131 Ariz. 100, 101, 638 P.2d 1346, 1347 (App. 1981). ¶15 Mother’s due process rights were not violated. The

court issued Form I to Mother at the initial dependency hearing informing her of her rights in the case. It indicated “the

[c]ourt may proceed to an adjudication of the ultimate issues” if Mother failed to appear. pretrial absentia. ¶16 conference, the When Mother did not appear at the court proceeded against her in

See A.R.S. section 8-537(C) (2007). Mother also did not attend the dependency adjudication Despite that fact, the court contacted

hearing as to Father.

Mother’s attorney telephonically to give her notice of ADES’s motion to dismiss the dependency and the request for a temporary custody order. It also granted Mother’s attorney an opportunity

to speak on the issue so her objections could be considered by the court and noted on the record. attend the hearing herself, she Even though Mother did not received reasonable notice

through her attorney because a client is generally bound by the knowledge of her attorney. Hackin v. First Nat. Bank of Ariz.,

Phoenix, 5 Ariz. App. 379, 385, 427 P.2d 360, 366 (1967). ¶17 Nor did the court abuse its discretion when it denied 7

the request made by Mother’s attorney to continue the hearing so Mother could be heard. Mother failed to attend the pretrial Even though Mother

conference and waived her right to be heard.

wanted to attend the dependency hearing scheduled as to Father, she waived her right to be heard by failing to attend the

pretrial conference held a month beforehand. ¶18 relevant The juvenile court’s proceeding also complied with the statute. The court may adjudicate the dependency

petition for one parent notwithstanding another parent’s request to contest the allegations in the petition under A.R.S. section 8-844(D) (2007)4. Since Father’s dependency adjudication hearing

was not scheduled as to Mother, the juvenile court did not have a duty to grant Mother notice and an opportunity to be heard. The court went beyond the requirements of A.R.S. § 8-844(D) when it contacted Mother’s attorney to give her notice of and allowed her to participate in the motion to dismiss dependency. ¶19 Finally, Mother suffered no prejudice from the above Mara M. v. Ariz. Dep’t of Econ. Sec., 201 Ariz. Mother would not

proceeding.

503, 507, ¶ 26, 38 P.3d 41, 45 (App. 2002).

have been prejudiced if ADES lost and the court dismissed the petition. Since Father said, and ADES agreed, he was ready and

able to parent Daughter, the court would have dismissed the
4

This decision refers to the current version of the statute, which is essentially the same as that in effect at the time of trial. 8

dependency petition and returned the child to Father’s custody because she was not a “dependent child”5 as defined by A.R.S. § 8-201(13)(a)(i). custody in Moreover, the Court said Mother can dispute court. Therefore, the juvenile court’s

family

decision did not prejudice Mother. II. Consolidation of Dependency and Family Court Matters ¶20 Mother argues the juvenile court misapplied the law She claims

regarding how to commence child custody proceedings.

a parent must file a petition for custody under A.R.S. section 25-401 (2007) before Mother a child the custody court proceeding not begins. the

Additionally,

argues

did

address

factors set forth in A.R.S. section 25-403(A)(1) (2007) or the procedures for issuing a temporary custody order under Rules 47 and 48 of the Arizona Rules of Family Law Procedure. Lastly,

Mother asserts the court did not make specific findings under A.R.S. sections 25-403(A)(1) through (10) (2007) even though the child custody matter was contested. ¶21 Custody of a child is obtainable under either A.R.S.

sections 25-401 to 415 (2007) or under A.R.S. sections 8-201 to 892 (2007).
5

See Marshall v. Super. Ct., Yavapai County, 145

A “dependent child” is one who is adjudicated to be in need of proper and effective parental care and control because the child does not have a parent or guardian willing to exercise such care and control. A.R.S. § 8-201(13)(a)(i). Father is listed on Daughter’s birth certificate and is presumed to be her father under A.R.S. section 25-814(A)(3) (2007). He stated he was ready and able to parent Daughter. 9

Ariz.

309,

311,

701

P.2d to

567, issue

569

(1985).

Juvenile

courts a

acquire child’s

jurisdiction welfare

temporary

orders

regarding

while

awaiting

dependency

determinations.

A.R.S. sections 8-303(E) (2007), 8-841(F) (2007); Mara M., 201 Ariz. at 506, ¶ 21, 38 P.3d at 44; Maricopa County Juv. Action No. JD-05401, 173 Ariz. 634, 640, 845 P.2d 1129, 1135 (App. 1993). See also Bechtel v. Rose (Ariz. Dep’t of Econ. Sec.), 150 Ariz. 68, 75, 722 P.2d 236, 243 (1986). ¶22 domestic orders. Consequently, relations and courts have the power when to consolidate custody

juvenile

matters

issuing

JD-05401, 173 Ariz. at 641, 845 P.2d at 1136; Maricopa

County Juv. Action No. JD-4974, 163 Ariz. 60, 63-64, 785 P.2d 1248, 1251-52 (App. 1990) (explaining that juvenile courts can determine Title 25 issues). In consolidated actions, the court JD-4974, 163

first decides whether the child is dependent.

Ariz. at 63, 785 P.2d at 1251. If the child is not dependent, “the court utilizes Id. at the same 785 evidence P.2d to at [issue] 1251-52. a custody Despite

order.”

63-64,

consolidation, either party may file a petition in the family court to establish temporary and permanent custody. 785 P.2d at 1252. ¶23 During the dependency hearing, ADES, Daughter, and Id. at 64,

Father asked the juvenile court to issue a temporary custody order while consolidating the juvenile and family court matters. 10

The court took jurisdiction of both matters.

The court then

granted temporary custody to Father and dismissed the dependency petition.6 ¶24 Mother’s argument that the court did not follow

statutory filing requirements and procedural rules fails because the court had authority to enter a temporary custody order in a dependency proceeding under Title 8 instead of Title 25. JD-05401, 173 Ariz. at 641, 845 P.2d at 1136. See

Moreover,

Mother’s counsel never challenged the juvenile court’s authority even though she had an opportunity to object to the court’s custody hearing. orders Id. telephonically at 640. at the the dependency custody adjudication did not

Finally,

order

prejudice Mother because it was temporary and Mother has an opportunity to contest it in family court. at 507, ¶ 26, 38 P.3d at 45. Conclusion ¶25 err when For the foregoing reasons, the juvenile court did not it denied Mother’s motion for a continuance, Mara M., 201 Ariz.

consolidated dependency and family court matters, granted Father temporary custody, and dismissed the dependency petition.

6

The court also ordered counsel and parties to continue to file pleadings related to the dependency case (JD-15105) and the family court case (FC 2007-090168). We do not understand how the court could have dismissed the dependency and allowed the parties to continue filing under JD-15105. However, this issue was not raised on appeal. 11

Accordingly, we affirm the juvenile court’s decision.

DONN KESSLER, Judge CONCURRING:

LAWRENCE F. WINTHROP, Presiding Judge

PATRICIA K. NORRIS, Judge

12


				
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