Veronica v. Dep't of Child Safety

JIMMY C, VERONICA C, Appellants, v. DEPARTMENT OF CHILD SAFETY¹, M.C., R.C., V.C., M.C., V.C., J.C., Appellees.

No. 1 CA-JV 14-0260

ARIZONA COURT OF APPEALS DIVISION ONE

April 30, 2015

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. JD23991

The Honorable Bradley H. Astrowsky, Judge

REVERSED AND REMANDED

COUNSEL

John C. Popilek, P.C., Scottsdale

By John C. Popilek

Counsel for Appellant Jimmy C.

Law Office of Anne M. Williams, P.C., Mesa

By Anne M. Williams

Counsel for Appellant Veronica C.

Arizona Attorney General's Office, Phoenix

By JoAnn Falgout

Counsel for Appellee DCS

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

SWANN, Judge:

¶1 Jimmy C. ("Father") and Veronica C. ("Mother"), parents of M.C., R.C., V.C., M.C., V.C., and J.C. ("the Children"), appeal the juvenile court's order terminating their parental rights after their nonappearance at a severance hearing. Finding good cause for the nonappearance, the juvenile court granted their Motion to Set Aside. Later, however, the court concluded that it lacked jurisdiction to grant the motion and reinstated the initial termination of Father's and Mother's parental rights. We hold that the court had jurisdiction to consider the motion and therefore reverse and remand with instructions to conduct a new severance hearing.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2013, the Arizona Department of Economic Security ("DES") filed a dependency petition alleging that Mother and Father had serious methamphetamine addictions and had neglected and abused the Children. Mother has given birth to two children who were exposed in utero to methamphetamine -- one as recently as two months before the filing of the dependency petition. DES alleged that Mother and Father were homeless and had been squatting in a vacant home with the Children until the police removed them from the property. DES also alleged that Mother and Father engaged in domesticviolence and allowed the Children to be present during those altercations. Accordingly, the juvenile court found the Children dependent as to Mother and Father.

¶3 Several months later, the Children's guardian ad litem filed a motion to terminate Mother's and Father's parental rights, based on their failure to participate in the reunification services offered to them and their chronic abuse of dangerous drugs.

¶4 The matter proceeded to a contested severance hearing and Mother and Father failed to appear at the hearing. The juvenile court found that this failure was without good cause, and that grounds for termination existed under A.R.S. §§ 8-533(B)(8)(b) and 8-533(B)(3). The court therefore severed Mother's and Father's parental rights.

¶5 Shortly thereafter, Mother and Father filed a "Joint Motion to Set Aside Default Finding,"² arguing that they had good cause for their failure to appear at the severance hearing. Mother and Father explained that they had been residing in an inpatient substance-abuse group home for over a month in Florence, Arizona, at the time of the hearing. The director of the group home was transporting Mother and Father to the severance hearing when their van broke down en route. Because no one had a mobile phone, Mother and Father were unable to contact their attorneys and inform them of their whereabouts before the hearing began. On the same day Mother and Father filed this motion, "in an abundance of caution," they also filed separate notices of appeal.

¶6 After considering Mother and Father's motion, the juvenile court determined that they had shown good cause for their failure to appear and set aside the findings made at the severance hearing. Soon after, Father filed a motion with this court requesting that we dismiss his appeal without prejudice because "[w]ith the trial court's default severance ruling set aside, there [was] no need to further prosecute [ ]his appeal." We granted Father's motion.

¶7 After the juvenile court set aside its order terminating Mother's and Father's parental rights and scheduled a new severance hearing, the Department of Child Safety ("DCS") filed a motion with this court requesting that we suspend Mother's appeal (Father's appeal having already been dismissed) and revest jurisdiction in the juvenile court so that DCS could file a motion to vacate the juvenile court's order granting Mother and Father's Motion to Set Aside. We granted that motion.

¶8 In its Motion to Vacate, DCS argued that the order granting Mother and Father's Motion to Set Aside was void for lack of jurisdiction because Mother and Father had already filed notices of appeal when the juvenile court entered the order. DCS cited case law related to Ariz. R. Civ. P. 60(c) for the proposition that while the juvenile court does have jurisdiction to set aside its own judgments, the court loses that power after a party commences an appeal.

¶9 The juvenile court held a hearing on DCS's motion and concluded "there is nothing specifically under the circumstances that gives the Court the authority to do anything other than grant [DCS]'s Motion." The court stated that "based upon the timing of how things happened in this case, intentional or not, . . . when this Court issued the order vacating the granting of the Motion for Termination of Parent-Child Relationship, this Court did not have jurisdiction to do so." The juvenile court then ordered that the original order terminating Mother's and Father's parental rights be reinstated. Mother and Father appeal.³

DISCUSSION

¶10 Mother and Father now argue that the juvenile court had jurisdiction to grant their Motion to Set Aside despite their previously filed notices of appeal. Mother and Father contend that "looking at the 'substance' of what occurred, it is clear that this Court revested jurisdiction in the [juvenile] court (by dismissing [Father's] appeal) for the express purpose of effecting [the juvenile court's] earlier ruling setting aside the default judgment." DCS contends that Mother and Father's argument fails because under Ariz. R.P. Juv. Ct. 103(F), the filing of a notice of appeal divests the juvenile court of jurisdiction except in very limited circumstances, none of which are applicable here.

¶11 "[I]f a claim is made that a judgment is void, we review a decision on that claim de novo. We [also] review challenges to the trial court's subject matter jurisdiction and questions involving the application and interpretation of court rules de novo." Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012). Additionally, upon consideration of an appeal, this court may take such actions as may appear just and proper under the circumstances. Ariz. R.P. Juv. Ct. 106(F)(4).

¶12 Ariz. R.P. Juv. Ct. 103(F) provides:

During the pendency of an appeal, the juvenile court may proceed within its legal authority on an issue remaining before it or newly presented to it to the extent (1) the appellate court has specifically authorized or directed the juvenile court to rule on the issue; (2) the juvenile court's ruling on the issue would be in furtherance of the appeal; (3) applicable statutory law or judicial rule confers continuing jurisdiction on the juvenile court; (4) the juvenile court's ruling on the issue would not legally or practically prevent the appellate court from granting the relief requested on appeal; or (5) the issue arises from a motion to dismiss the appeal filed by the appellant and presented to the juvenile court for ruling at a time before the clerk of the superior court forwards the record to the appellate court pursuant to Rule 105(D).

¶13 "[T]he plain language of ARPJC 103(F) divests the entire juvenile division of the superior court from proceeding on issues presently before that division, or newly presented to it, while an appeal is pending unless it is granted the authority to proceed by one of the exceptions in ARPJC 103(F)." Roberto F. v. Dep't of Child Safety, 235 Ariz. 388, 392, ¶ 15 (App. 2014). Mother and Father argue that by dismissing Father's appeal without prejudice, this court effectively approved the juvenile court's grant of the Motion to Set Aside under Ariz. R.P. Juv. Ct. 103(F)(1). We agree.

¶14 "[W]e interpret the rules of juvenile procedure 'in a manner designed to protect the best interests of the child.'" Xavier R. v. Joseph R., 230 Ariz. 96, 98, ¶ 6 (App. 2012) (quoting Ariz. R.P. Juv. Ct. 36). And "the best interests of the child are not furthered by judicial shortcuts, intentional or unintentional, which reach an expeditious result but fail to recognize the fundamental nature of the right of parents to the care, custody, and management of their child." Roberto F., 235 Ariz. at 395, ¶ 22 (citation omitted).

¶15 Ariz. R.P. Juv. Ct. 103(F)(1) gives the juvenile court jurisdiction to proceed during the pendency of an appeal if the appellate court has specifically authorized or directed the juvenile court to rule on an issue. In Father's motion todismiss his appeal without prejudice, he specifically stated that because the juvenile court had granted his Motion to Set Aside and a new severance hearing had been set, there was no need to further prosecute his appeal.

¶16 We granted Father's motion to dismiss to allow the court to implement its first order granting Mother and Father's Motion to Set Aside and conduct a full evidentiary proceeding. Although the juvenile court's order issued before we granted Father's motion to dismiss, that sequence should not operate to...