from the Superior Court in Maricopa County No. JD530462 The
Honorable Karen L. O'Connor, Judge
DISMISSED; JURISDICTION ACCEPTED; RELIEF DENIED
W. Bell Attorney at Law, Mesa By David W. Bell Counsel for
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.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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."). 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