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Brionna J. v. Department of Child Safety

Court of Appeals of Arizona, First Division

July 9, 2019

BRIONNA J., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.V., Appellees.

          Appeal from the Superior Court in Maricopa County No. JD530462 The Honorable Karen L. O'Connor, Judge

         APPEAL DISMISSED; JURISDICTION ACCEPTED; RELIEF DENIED

          David W. Bell Attorney at Law, Mesa By David W. Bell Counsel for Appellant.

          Arizona Attorney General's Office, Tucson By Laura J. Huff Counsel for Appellee Department of Child Safety.

          Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined.

          OPINION

          Mc MURDIE, JUDGE.

         ¶1 Brionna J. ("Mother") appeals the juvenile court's order denying her motion to return her child, Anya, to her custody. We conclude we lack appellate jurisdiction of Mother's appeal because we hold that the denial of an Arizona Rule of Procedure for the Juvenile Court ("Rule") 59 motion to return the custody of a child to a parent is not a final and appealable order. We will, however, treat the appeal as a special action, accept jurisdiction but deny relief because, as discussed below, the issue is moot.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 This appeal arises from a dependency action initiated against Mother and Anya's father, Christopher V. ("Father"), in November 2016. When the dependency petition was filed, Mother and Father were living separately and had been involved in a custody battle over Anya. In March 2017, the juvenile court adjudicated Anya dependent, placed Anya in out-of-home care, and established the case plan for both Mother and Father as family reunification. After more than a year of ongoing dependency proceedings, Mother filed a motion requesting the court return Anya to her custody according to Arizona Revised Statutes ("A.R.S.") section 8-861 and Rule 59. Father also filed a Rule 59 motion requesting Anya be returned to his custody.

         ¶3 The court suggested deciding both parents' Rule 59 motions simultaneously, and the parties agreed. Mother argued that returning Anya to her care was appropriate because Mother had completed all the services provided to her by the Department of Child Safety ("DCS"). To support her argument, Mother presented testimony concerning her successful completion of parent-aide services and contended she had completed therapy services with the Veteran's Administration. In response, DCS, Father, and Anya's guardian ad litem argued Father was closer to reunification with Anya than Mother, and, therefore, granting his Rule 59 motion over Mother's was in Anya's best interests. DCS, Father, and Anya's guardian ad litem also expressed concern that while Mother had completed some services, she had not made the behavioral changes necessary to regain custody.

         ¶4 After the parties presented their arguments, the court opined that "Father [was] a little bit further along than Mother to have reunification with Any a," and granted Father's Rule 59 motion. The court stated that "[b]ecause [it] granted Father's Rule 59 motion, [it was] denying Mother's Rule 59 motion," and explained that, "Father is more ready than Mother to have Any a in his custody." The court then granted Anya's guardian ad litem's request to change physical custody of Anya to Father and subsequently filed a signed minute entry reflecting its orders.

         ¶5 Mother filed a notice of appeal from the signed minute entry. While this appeal was pending, DCS moved to change the physical custody of Anya back to an out-of-home placement because an incident between Any a and Father caused Anya to feel unsafe in Father's home. The court granted the motion, finding that continuing in-home placement would be contrary to Anya's welfare and that Anya's placement with DCS was consistent with her best interests.

         DISCUSSION

         ¶6 Mother argues the juvenile court abused its discretion by denying her Rule 59 motion because it had granted Father's Rule 59 motion. Mother contends the juvenile court could have granted both parents' Rule 59 motions and then made custodial arrangements for the parents and Anya. See Ariz. R. Fam. Law P. 5.1(a)(2) ("The juvenile division will hear legal decision-making and parenting time issues until the dependency is dismissed or the juvenile division defers jurisdiction to the family division.").[1] Before we can address the issue raised by Mother, however, we must examine whether we have jurisdiction to decide an appeal from an order denying a Rule 59 motion. See Maricopa County Juv. Action No. J-79149, 25 Ariz.App. ...


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