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Leticia E. v. Arizona Department of Economic Security, M.E.

Court of Appeals of Arizona, First Division, Department C

October 24, 2013

LETICIA E., FRANCISCO E., Appellants,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, M.E., Appellees

Not for Publication -103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP

Appeal from the Superior Court in Maricopa County Cause No. JD20010 The Honorable Jay R. Adleman, Judge Pro Tempore

Jeffrey M. Zurbriggen, P.C. Phoenix by Jeffrey M. Zurbriggen Attorney for Appellants

Thomas C. Horne, Attorney General Tucson by Laura J. Huff, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security

MEMORANDUM DECISION

SAMUEL A. THUMMA, Judge

¶1 Maternal grandparents Leticia and Francisco E. (collectively Grandparents) challenge the superior court's denial of their motion to reconsider a change in custody of M.E.[1] This court accepts special action jurisdiction over Grandmother's challenge but denies relief because the superior court did not err.

FACTS AND PROCEDURAL HISTORY

¶2 M.E. was born on February 12, 2009, to Arlim E. (Mother) and Kevin M. (Father). On February 15, 2011, Grandmother filed a verified private dependency petition alleging Mother "[m]ay be under the influence of narcotics. Leaves home for days, forgetting about her responsibilities [to M.E.], therefore neglecting her. [L]ives in domestic violent environment." Without objection, the Arizona Department of Economic Security (ADES) substituted in as petitioner, was awarded legal custody of M.E. and placed her in Grandmother's physical custody. After M.E. was found dependent, the parental rights of Mother and Father were terminated after they failed to comply with services provided and did not contest termination.

¶3 For months, M.E. was in the physical care of Grandmother, who was considered a potential adoptive placement. While placed with Grandmother, any contact between M.E. and Mother had to be supervised, a condition ADES and the court repeatedly discussed with Grandmother.

¶4 On November 27, 2012, ADES received a "status communication" that Grandmother had allowed Mother to take M.E. in a car with two other children and a male driver and, when stopped by the police, "[a]mphetamines and cocaine were found in the front seat of the car." Although Mother was not arrested or charged, the driver was arrested and police "paid for a room for [M]other and the children to stay one night." According to the status communication, M.E. was "placed in danger. Grandmother knew she was not to leave the child with the biological mother and has failed to protect this child." The next day, ADES removed M.E. from Grandmother's physical custody. On December 3, 2012, ADES filed a motion to change physical custody (noting M.E.'s guardian ad litem "supports the motion" and attaching a report of the incident), which the superior court granted without a hearing on December 5, 2012.

¶5 Grandmother then filed motions (1) to intervene and (2) to return M.E. to her care or to other kinship placement. Grandmother did not request a hearing or oral argument. After numerous other filings by Grandmother and ADES, on February 1, 2013, in a five-page minute entry, the superior court granted the motion to intervene "for the limited purpose of addressing the custodial issues pertaining to the child" but denied the motion to return. In addressing the motion to return, the court was

troubled to learn that the maternal grandmother – in spite of specific instructions from ADES – allowed the child to be placed in a dangerous situation with a drug-addicted mother who had recently lost her parental rights. Both ADES and this Court warned the maternal grandmother about this precise situation. The maternal grandmother's failure to follow those instructions is extremely disconcerting, especially given the fact that the mother had not remedied the circumstances which caused the child to come into care, i.e., to address her serious drug problems or other related issues.
ADES further noted additional reasons to justify the removal of this child from the maternal grandmother's care. In the aftermath of the removal, the child was taken for medical and dental examinations. She was suffering from poor nutrition and tooth decay. Although she is only 3 years old, the child had two teeth extracted, and she needed silver caps on several other teeth. She also needed medical attention for a rash and a yeast infection. ADES was required to set up eye appointments for her as well.
It is considerably interesting to note that – in spite of all the [filings] that have been filed on behalf of the maternal grandmother – the factual allegations from ADES have gone entirely undisputed. In other words, maternal grandmother has not contested the fact that (1) she allowed the child to be unsupervised without the consent of ADES or this Court; (2) the child was placed in danger at the time of the traffic stop in November 2012; and ...

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