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A.R. v. Department of Child Safety

Court of Appeals of Arizona, First Division

April 2, 2019

A.R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, JESSICA S., Appellees.

          Appeal from the Superior Court in Maricopa County Nos. JD28985/JS18836 The Honorable Sara J. Agne, Judge.

          Vierling Law Offices, Phoenix By Thomas A. Vierling Counsel for Appellant

          Law Office of H. Clark Jones, LLC, Mesa By H. Clark Jones Counsel for Appellee Jessica S.

          Judge Maria Elena Cruz delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

          OPINION

          CRUZ, JUDGE.

         ¶1 The guardian ad litem ("GAL"), on behalf of the minor A.R., requests reversal of the juvenile court's finding that severance of the parental rights of Jessica S. ("Mother") was not in A.R.'s best interests. For the following reasons, we accept special action jurisdiction sua sponte and deny relief. We affirm the juvenile court's findings and the order denying DCS' petition to sever Mother's parental rights.

         FACTS AND PROCEDURAL HISTORY

         ¶2 Mother is the biological parent of A.U., a child victim of severe physical abuse. Julio Ramirez ("Father")[1] is not A.U.'s biological parent, but he and Mother are the biological parents of two other children, both with initials A.R. (hereinafter "middle child" and "A.R."), born after A.U. As a result of the abuse perpetrated on A.U. while in the care of Mother and Father, Mother's parental rights to A.U. were severed. In that separate case neither parent was conclusively identified as the abuser. Still, the fact that the injuries occurred while A.U. was in the care of Mother or Father, or both, and due to their severity-including complex skull fractures to both sides of his head, brain bleeding consistent with head trauma, healing fractures to his left leg and hand, bruising to his face, bruising to his abdomen and back, and peeling on his feet associated with second-degree burns, most of which occurred over time - the juvenile court found that Mother and Father each either abused A.U. or knew it was occurring. Additionally, the two parents had their parental rights to the middle child terminated when DCS established that there was a sufficient nexus between A.U.'s abuse and the risk of abuse to the middle child. A.R.-Mother and Father's second, and younger, biological child-is the subject of this severance proceeding.

         ¶3 Four days after A.R.'s birth, DCS filed a dependency petition under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(2), alleging Mother and Father had willfully abused A.U. and that there was a sufficient nexus between A.U.'s abuse and risk of abuse to the newly-born A.R. DCS further alleged, pursuant to A.R.S. § 8-533(B)(10), that the prior termination of parental rights to A.U. was an additional ground for termination of Mother's and Father's rights to A.R. Six months later, DCS filed its petition for severance. DCS eventually placed A.R. with the paternal grandmother, Mildred Ruano ("Ruano"), a potential adoptive placement. By the time of the final hearing, A.R. had been in placement with Ruano for eight months.

         ¶4 After the final hearing, the juvenile court found A.R. was dependent as to Mother, and that abuse pursuant to A.R.S. § 8-533(B)(2) was conclusively established as a ground for severance against Mother, but that DCS failed to establish, under A.R.S. § 8-533(B)(10), that the underlying cause that prevented Mother from being able to meet A.U.'s needs continued to exist and prevented Mother from meeting the needs of A.R. Lastly, the court ruled that, although Ruano seemed a loving placement for A.R., given the likelihood Ruano would allow frequent unsupervised contacts between Father and A.R., "the preponderance of the evidence [did] not favor termination of Mother's parent-child relationship as a benefit to [A.R.]."

         ¶5 In the end, the court severed Father's parental rights to A.R., but not Mother's. The GAL timely appealed the ruling denying severance of Mother's rights. It is unclear whether a GAL, alone, has standing to seek appellate review of the juvenile court's order. Further, the ruling is not a final order because Mother's dependency case is still ongoing in the juvenile court. DCS' argument assumes that the court's order was a final and appealable order. See A.R.S. § 8-235(A); Ariz. R.P. Juv. Ct. 103(A). Even if jurisdiction by appeal is lacking, this court has the "discretion to consider the matter as a special action." State v. Perez, 172 Ariz. 290, 292 (App. 1992); see also Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35 (App. 2001) (sua sponte accepting special action jurisdiction). Accordingly, the court in its discretion will entertain the GAL's challenge, on behalf of the minor, to the June 2018 ruling by accepting special action jurisdiction sua sponte, because clarifying the appropriateness of considering a parent's efforts and progress in the context of the best-interests analysis is an issue of statewide importance. See A.R.S. § 12-120.21(A)(4); Ariz. R.P. Spec. Act. 1(a).

         DISCUSSION

         I. Standard of Review

         ¶6 "We accept the juvenile court's findings of fact if reasonable evidence and inferences support them, and will affirm a severance order unless it is clearly erroneous." Alma S. v. Dep't of Child Safety,245 Ariz. 146, 151, ¶ 18 (2018) (citation omitted). It is not proper for this court to weigh the evidence. Id. Resolving conflicting evidence, even "sharply disputed" evidence, is "uniquely the province of the juvenile court." Id. (citation omitted). This court "will affirm unless, as a matter of law, no reasonable fact-finder could have found that the evidence ...


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