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Department of Child Safety v. Juan P.

Court of Appeals of Arizona, First Division

August 7, 2018

DEPARTMENT OF CHILD SAFETY, S.P., Appellants,
v.
JUAN P., Appellee.

          Appeal from the Superior Court in Maricopa County No. JD 29446 The Honorable Sally Schneider Duncan, Judge

          Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Appellant, Department of Child Safety

          Maricopa County Public Advocate, Mesa By David C. Lieb Counsel for Appellee

          Presiding Judge Michael J. Brown delivered the opinion of the Court, in which Judge Maria Elena Cruz and Judge David D. Weinzweig joined.

          OPINION

          BROWN, Judge

         ¶1 In this appeal we address whether the juvenile court erred in granting a motion for change of physical custody filed pursuant to Arizona Rule of Procedure for the Juvenile Court ("Rule") 59. Because no reasonable evidence supports the court's findings, we vacate the court's order and remand for further proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 S.P. was born in 2011 in California. His biological father, Juan P. ("Father"), was convicted in 2005 of a felony involving possession of drugs for sale. Father served his jail sentence, but otherwise failed to complete probation. He was arrested in 2012 and deported to Mexico; he is not allowed to return to the United States because there is an active warrant for his arrest in California. When Father was deported in May 2012, S.P. went to live with him in Mexico but returned to the United States in May 2013 to visit his mother ("Mother"). The visit with Mother turned into an extended stay. Within a few months, Father lost contact with Mother and S.P. and for nearly two years made no efforts to find them, other than contacting S.P.'s maternal aunt and uncle once. In mid-2015, Father again sought to contact them after he learned S.P. was in the care of the Department of Child Safety ("DCS").

         ¶3 Meanwhile, S.P. had moved from California to Arizona with Mother. In November 2014, DCS took S.P. into care, alleging he was dependent as to Father because of neglect and dependent as to Mother because of neglect, substance abuse, and mental illness. DCS also alleged that Father was never married to Mother and he did not have a custody order or a child support order as to S.P. The juvenile court found that S.P. was dependent in February 2015 when both parents failed to appear, and due to their lack of participation, the court accelerated a permanency planning hearing and changed the case plan to severance and adoption. In August 2015, DCS filed a motion to terminate Father's parental rights based on abandonment. Father learned that S.P. was in DCS custody in Arizona in April 2015; however, he did not contact DCS until June and then once again in September.

         ¶4 In April 2016, Father filed a Rule 59 motion seeking the return of S.P. to his physical custody in Mexico. The juvenile court initially denied the motion, finding "there would be substantial risk of harm to [S.P.'s] mental or emotional health." At the same time, however, the court "thought DCS had not met its burden regarding the grounds of abandonment" and thus ordered the parties to submit briefing on that issue before the next court date.

         ¶5 After briefing, but on the same factual record, the juvenile court reversed its prior ruling and ordered that S.P. be "immediately" returned to Father in Mexico. On appeal, we vacated the order that S.P. be returned to Father's physical custody, directing the court to hold a new evidentiary hearing on a Rule 59 motion or conduct a termination hearing before S.P. could be moved from Arizona to Mexico. S.P. v. Juan P., 1 CA-JV 16-0446, 2017 WL 2125729, at *5, ¶ 20 (Ariz. App. May 16, 2017) (mem. decision). Before the mandate issued, and without holding an evidentiary hearing, the court entered orders dismissing the dependency case, finding that Father was a fit parent and, again, directing that S.P. be "immediately" returned to Father. DCS filed a petition for special action and motion for emergency stay. We granted the stay and the relief requested in the special action petition, concluding that the juvenile court lacked jurisdiction to dismiss the dependency case while the prior appeal regarding Rule 59 was still pending. Dep't of Child Safety v. Duncan, 1 CA-SA 17-0150, 2017 WL 2953353, at *2-3, ¶¶ 6, 13 (Ariz. App. July 11, 2017) (mem. decision).

         ¶6 In October 2017, the juvenile court held the evidentiary hearing on Father's second Rule 59 motion, as directed by this court. DCS opposed the motion, as did S.P.'s guardian ad litem and S.P.'s attorney. Following the three-day hearing, during which the court received testimony and reports from three experts, as well as testimony from Father, the DCS caseworker, the foster father, and S.P.'s therapist, the court granted Father's motion and ordered that DCS "immediately coordinate the return" of S.P. to Father in Mexico with the assistance of the Mexican Consulate no later than 24 hours after the filing of the order. DCS timely appealed and successfully sought a stay of the Rule 59 order from this court pending the outcome of this appeal.

         DISCUSSION

         ¶7 Rule 59(E)(1) and Arizona Revised Statutes ("A.R.S.") section 8-861 provide that on request by a parent, the juvenile court shall return a child to the parent if it finds by a preponderance of the evidence "that return of the child would not create a substantial risk of harm to the child's physical, mental or emotional health or safety." The juvenile court has "substantial discretion when placing dependent children because [its] primary consideration in dependency cases is the best interest of the child." Antonio P. v. Ariz. Dep 't of Econ. Sec.,218 Ariz. 402, 404, ¶ 8 (App. 2008). We review an order addressing the physical custody of a child for an abuse of discretion, id., but we review legal issues de novo, Dep't of Child Safety v. Beene,235 Ariz. 300, 304, ΒΆ 8 (App. 2014). We will not reweigh the evidence because the juvenile court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and ...


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