                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                              PERLA M., Appellant,

                                         v.

 DEPARTMENT OF CHILD SAFETY, GILBERTO P-C., K.P-M., Appellees.

                              No. 1 CA-JV 19-0431
                                 FILED 8-4-2020


            Appeal from the Superior Court in Maricopa County
                              No. JD36118
                  The Honorable Jo Lynn Gentry, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                    COUNSEL

Gillespie, Shields, Goldfarb & Taylor, Phoenix
By DeeAn Gillespie Strub, Kristina Reeves
Counsel for Appellant

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

Denise L. Carroll Attorney at Law, Scottsdale
By Denise L. Carroll
Counsel for Appellee Gilberto P-C.
                          PERLA M. v. DCS et al.
                           Decision of the Court



                     MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Chief Judge Peter B. Swann joined.


W I L L I A M S, Judge:

¶1           Perla M. (“Mother”) challenges the juvenile court’s order
changing physical custody of her child, K.P-M. (“Child”). For the following
reasons, we accept special action jurisdiction and grant relief.

              FACTUAL AND PROCEDURAL HISTORY1

¶2           Mother and Gilberto P-C. (“Father”), have one child in
common born in 2017. In July 2018, Child was admitted to the hospital with
a two-day fever and mouth ulcers. Hospital staff observed multiple bruises
on Child, and an x-ray revealed a skull fracture. Child was transported to
Phoenix Children’s hospital, where more bruises and lacerations were
discovered.

¶3            At that time, Child was living with Mother, who received
caretaking assistance from family members. Father had been deported to
Mexico and was unable to be located. Mother claimed Child received the
injuries learning to walk, but a doctor determined Child’s injuries were
inconsistent with this explanation. Neither Mother, nor any family
members with whom she lived, provided sufficient explanation for Child’s
injuries. Mother agreed to sign a Present Danger Plan, temporarily placing
Child in foster care. DCS then filed a dependency petition alleging Child
was dependent as to both parents and obtained an order placing Child into
temporary Arizona Department of Child Safety (“DCS”) custody. The
following month, Child was placed with relatives.

¶4           In September 2018, the juvenile court found Child dependent
as to Mother. Around the same time, DCS located Father in Mexico. The
juvenile court found Child dependent as to Father in January 2019. In
September 2019, Mother motioned to regain physical custody of Child


1 Mother’s opening brief contains citations to attached appendix items not
included in the record on appeal. We disregard any factual assertions
referring to items not in the record. See ARCAP 13.1(b).


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                          PERLA M. v. DCS et al.
                           Decision of the Court

under Rule 59 of the Arizona Rules of Procedure for the Juvenile Court. The
motion was denied.

¶5            In November 2019, DCS filed a motion for change in physical
custody, intending to transfer custody of Child to Desarrollo Integral de la
Familia (“DIF”), Mexico’s counterpart to DCS, to facilitate placement with
Father in Mexico. DCS noted Mother’s objection in its motion. On December
3, Mother obtained new counsel. On December 10, the court held a report
and review hearing, at which Mother’s new attorney argued due process
required an evidentiary hearing on the motion for change in physical
custody, and indicated she believed Mother’s response to the motion was
due two days later. When DCS argued a hearing was not necessary, the
court indicated it “need[ed] to wait for the response time to lapse” before it
could act without a hearing. The court informed Mother’s counsel, “I need
a response before I can set anything.”

¶6            Two days later, on December 12, the juvenile court entered an
order granting DCS’s motion. Mother claimed she timely emailed DCS a
copy of the response that day, as well as a second Rule 59 motion requesting
the return of Child to her custody, but acknowledged she failed to file either
with the court until December 13. On December 16, in response to the
court’s order granting DCS’s motion, Mother filed a motion for
reconsideration and motion to stay, which the court denied.

¶7            On December 19, Mother timely filed a notice of appeal from
the change in physical custody order. On January 14, 2020, Mother filed a
motion with the juvenile court to schedule a hearing on her December 13
Rule 59 motion. On January 23, the juvenile court denied the request for a
hearing, concluding the motion was moot. On February 6, Mother filed her
opening brief in the present case, which included a request to review the
court’s denial of her second Rule 59 motion in addition to the change in
physical custody order she originally appealed.

¶8            On June 18, 2020 we issued an order: (1) treating the direct
appeal as a special action, (2) accepting special action jurisdiction, (3)
granting relief, (4) vacating the order for change in physical custody issued
December 12, 2019, (5) remanding the matter to allow the juvenile court to
make findings on the motion for change in physical custody pursuant to
A.R.S. § 8-514 and considering the child’s “best interests,” (6) remanding
for a hearing on Mother’s Rule 59 motion filed December 13, 2019, and (7)
informing a written decision would follow. This is the written decision.




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                            PERLA M. v. DCS et al.
                             Decision of the Court

                                DISCUSSION

I.     Jurisdiction

¶9             “This court has an independent obligation to determine
whether it has appellate jurisdiction.” Jessicah C. v. Dep’t of Child Safety, 248
Ariz. 203, ¶ 8 (App. 2020). If we lack appellate jurisdiction, we must dismiss
the appeal. Dabrowski v. Bartlett, 246 Ariz. 504, 511, ¶ 13 (App. 2019).

       A.     Change of Physical Custody Order

¶10            “Appellate jurisdiction is defined by statute.” Jessicah C., 248
Ariz. at 203, ¶ 9. Under A.R.S. § 8-235(A), “[a]ny aggrieved party in any
juvenile court proceeding under this title may appeal from a final order of
the juvenile court to the court of appeals.” See also Ariz. R.P. Juv. Ct. 103(A).
“[B]ecause dependency proceedings implicate the ‘important and
fundamental right to raise one’s children,’” we do “not apply a ‘narrow,
technical conception of what constitutes a final order’ under A.R.S. § 8-
235(A).” Jessicah C., 248 Ariz. at 203, ¶ 15 (quoting Brionna J. v. Dep’t of Child
Safety, 247 Ariz. 346, 349, ¶ 8 (App. 2019)). Rather, we consider the order’s
“practical effect.” Id. Although we previously accepted special action
jurisdiction, we find it appropriate to decide whether we also have
appellate jurisdiction over this matter.

¶11             Father suggests we lack jurisdiction because the change in
physical custody order is not an appealable final order, citing to Jessicah C.
In Jessicah C., we held an order changing physical custody did not qualify
as a final order when it did not change the child’s dependent status and did
not have a “’substantial impact’ on a parent’s ability to participate in
services.” 248 Ariz. 203, ¶ 15 (quoting Brionna J., 247 Ariz. at 349, ¶ 10).
However, in In re Maricopa Cty. Juv. Action No. JD-500116, 160 Ariz. 538, 542
(App. 1989), we held an order changing a child’s placement to another state
constituted an appealable order because it had “a substantial impact on the
natural father’s practical ability to have any contact with his child.”

¶12           Here, the juvenile court’s change in physical custody order
authorized moving the Child from the physical custody of a family member
residing in Arizona to DIF, a Mexican governmental agency. Surely the
movement of the child to another country will have a “substantial impact”
on Mother’s ability to have contact with the Child. And, although a petition
for special action may have precipitated a more expeditious review of the
change in physical custody order given the time-sensitive nature of
placement in a dependency, we conclude the order in this case is a final



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                            PERLA M. v. DCS et al.
                             Decision of the Court

appealable order. We have jurisdiction under A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).

       B.     Rule 59 Motion

¶13           Mother filed her second Rule 59 motion on December 13, the
day after the court granted DCS’s motion for change in physical custody.
On December 19, Mother filed this appeal, which specifically requested
review of only the court’s December 12 change in physical custody order.
On January 14, 2020, Mother filed a motion with the juvenile court to
schedule a hearing on her Rule 59 motion, which the court denied as moot
on January 23. Mother did not initiate a new appeal based upon the Rule 59
motion. Instead, Mother filed an opening brief in the present appeal which
included a request to consider her opening brief as a petition for special
action regarding her Rule 59 argument.2

¶14            Mother concedes that, because the juvenile court had not yet
denied her Rule 59 motion when Mother filed this appeal, it is not an
appealable order. However, even if the court had ruled, the resulting order
still would not be a “final order” from which an appeal could be taken. See
Brionna J., 247 Ariz. at 350, ¶ 10. Regardless, review by this court should be
available. And “[g]iven the fluid, time-sensitive nature of placement
determinations,” id. at 350, ¶ 14, review by special action is most
appropriate. See Jessicah C., 248 Ariz. at 119, ¶ 16. “Indeed, review by special
action is preferable because it allows an accelerated review by this court.”
Id. Thus, considering the interests involved, including the child’s best
interests, in the exercise of our discretion we treat Mother’s appeal as a
petition for special action and accept special action jurisdiction. Id. at 119,
¶ 17.

II.    Due Process Claims

¶15          Mother argues her state and federal rights to due process
were violated when the court granted DCS’s motion for change in physical
custody without an evidentiary hearing.3 We review due process claims de


2 Mother titled her opening brief “Appellant’s Opening Brief, or,
Alternatively, Petition for Special-Action Relief.”

3 Mother argues the Arizona due process clause provides more protection
than its federal counterpart in the parental rights context. Although Mother
points to cases expanding the right to counsel under the Arizona
constitution, she fails to support her argument for expansion in this context.


                                       5
                            PERLA M. v. DCS et al.
                             Decision of the Court

novo, State ex rel. Dep’t of Econ. Sec. v. Torres, 245 Ariz. 554, 560, ¶ 23 (App.
2018), but review placement orders of dependent children for abuse of
discretion. Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8 (App.
2008).

¶16            DCS counters that Mother waived her due process claims by
failing to raise them with the juvenile court. However, at the December 10
report and review hearing, Mother argued that “due process requires an
evidentiary hearing” on the change in physical custody motion. By doing
so, Mother preserved her argument regarding her right to an evidentiary
hearing.

¶17            “The touchstone of due process under both the Arizona and
federal constitutions is fundamental fairness.” State v. Melendez, 172 Ariz.
68, 71 (1992). “Due process entitles a party to notice and an opportunity to
be heard at a meaningful time and in a meaningful manner.” Cook v.
Losnegard, 228 Ariz. 202, 206, ¶ 18 (App. 2011) (quoting Curtis v. Richardson,
212 Ariz. 308, 312, ¶ 16 (App. 2006)). It is also “flexible and calls for such
procedural protections as the particular situation demands.” Mathews v.
Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471,
481 (1972)). Under Arizona Rule of Procedure for the Juvenile Court 46(C),
“[t]he court may rule on the motion, with or without a hearing, if the motion
states there is no objection or the time for filing an objection has expired.”
(Emphasis added.)

¶18            Here, Mother did not file her response to DCS’s motion until
the day after the time for filing the response had expired.4 The court did not
deny Mother’s request for a hearing; rather, the court indicated it required
a written response before it would set a hearing, which was consistent with
Rule 46. Therefore, Mother had the opportunity for a hearing—she needed
only file a timely response, but lost that opportunity when the filing



4DCS’s motion indicates it was electronically delivered to Mother’s counsel
on November 26, 2019. If this were accurate, the response would have been
due five business days later, on December 5. See Ariz. R.P. Juv. Ct. 46(C).
However, at the hearing, Mother’s counsel indicated she believed the
response was due December 12. This would have been correct had the
motion been served by mail. See id. Because the record does not confirm the
actual manner of service, neither opposing counsel, nor the court corrected
or challenged the statement at the hearing, and the later date does not
prejudice Mother, we will use December 12 as the proper due date.



                                        6
                          PERLA M. v. DCS et al.
                           Decision of the Court

deadline expired.5 And, although at the December 10 hearing Mother’s
counsel indicated Mother “is certainly going to be responding,” the
intention to object is insufficient to preserve the right to a hearing under
Rule 46. On this record, the juvenile court did not abuse its discretion in
granting the motion without a hearing.

¶19           Mother further argues the court deprived her of due process
under the Arizona constitution by applying the incorrect standard and
failing to analyze factors required under A.R.S. § 8-514 in making its
findings. Specifically, Mother argues the court erred when it indicated
“placement was the least restrictive consistent with the needs of the child,”
without any apparent consideration of the statutory factors. (Emphasis
added.) DCS opted not to address the merits of Mother’s claim, arguing the
claim was waived when Mother failed to raise it with the juvenile court.
However, it was only after the court issued its order that Mother first
became aware of what findings, or lack thereof, the court based its order
upon. See Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 10 (App. 2016) (indicating a
party does not have a duty to object to a final, appealable order to preserve
error therein). Thus, Mother did not waive her argument because she raised
it in her opening brief.

¶20            When considering a change in physical custody for a child,
A.R.S. § 8-514(B) requires that DCS, and in turn the juvenile court, place the
“child in the least restrictive type of placement available, consistent with
the best interests of the child.” (Emphasis added.) Subsection G of the same
statute, added by our legislature in 2018, identifies a minimum of eleven
additional factors to be considered in determining a child’s best interests.
The record does not demonstrate the court made any “best interests”
determination in granting the motion for change of physical custody.
Rather, the court’s order was granted based only upon the following
express findings: (1) “upon motion of [DCS],” (2) “good cause appearing,”
and (3) “[t]he proposed placement is the least restrictive consistent with the
needs of the child.”

¶21           The order, prepared by DCS and endorsed by the court,
included outdated statutory language regarding the “needs” of the child,
rather than the current statutory language regarding the “best interests” of
the child. Were we to simply gloss over the court’s findings based upon the
child’s “needs” rather than the statutorily required “best interests,”

5 Although the order is time-stamped 3:45 p.m., before the close of the
business day on the due date, because Mother did not file until 12:26 p.m.
the next day, she was not prejudiced.


                                      7
                           PERLA M. v. DCS et al.
                            Decision of the Court

equating the two as the same, we would violate “the rule of statutory
construction that requires us to presume that ‘when the legislature alters
the language of a statute[,] it intended to create a change in the existing
law.’” In re Paul M., 198 Ariz. 122, 124, ¶ 6 (App. 2000) (quoting State v.
Bridgeforth, 156 Ariz. 60, 63 (1988)). Thus, the court abused its discretion by
ordering a change in Child’s physical custody without considering the
Child’s “best interests,” as well as those compulsory factors set forth in
A.R.S. § 8-514. Consequently, we remand to allow the juvenile court to
make findings consistent with the current statutory requirement; and,
because the change in physical custody order lacked mandatory findings,
the court erred in dismissing, as moot, Mother’s second Rule 59 motion.

¶22              On remand, the juvenile court should not feel constrained to
base its determination solely upon the evidence it previously had before it.
Rather, the court is free to hold additional hearings, for both the change in
physical custody motion and Mother’s second Rule 59 motion, to ensure it
has all current, relevant evidence before it in determining what actions will
be in the child’s “best interests.” See Dep’t of Child Safety v. Beene, 235 Ariz.
300, 304, ¶9 (App. 2014) (“In dependency and severance proceedings, ‘the
child’s best interests are paramount.’”) (quoting Don L. v. Ariz. Dep’t of Econ.
Sec., 193 Ariz. 556, 559, ¶ 7 (App. 1998)); Ariz. R.P. Juv. Ct. 36 (providing
that rules governing these proceedings “should be interpreted in a manner
designed to protect the best interests of the child, giving paramount
consideration to the health and safety of the child”); see also Alexander M. v.
Abrams, 235 Ariz. 104, 107, ¶ 15 (2014) (“Arizona’s statutes, case law and
rules of procedure reflect that the juvenile court is obligated to oversee the
dependency case, [and] to consider the best interests of the child in every
decision . . . .”).

                                CONCLUSION

¶23          For the foregoing reasons, we vacate the court’s order
granting change in physical custody and remand for further proceedings to
properly consider both DCS’s motion for change in physical custody, as
well as Mother’s second Rule 59 motion.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA

                                         8
