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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              REYNA A., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, E.C., Appellees.

                              No. 1 CA-JV 19-0221
                                FILED 12-17-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD531664
                 The Honorable Jennifer E. Green, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee, Department of Child Safety
                          REYNA A. v. DCS, E.C.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1            Reyna A. (“Mother”) appeals the superior court’s order
adjudicating her child, Elijah C. (“Child”), dependent. Mother argues the
ruling is invalid because the court failed to make specific written factual
findings in support of the dependency as required by A.R.S. § 8-844(C)(1)(a)
and Arizona Rule of Procedure for the Juvenile Court (“Rule”) 55(E)(3). For
the foregoing reasons, we vacate, remand, and direct the court to comply
with Rule 55(E).

                             BACKGROUND

¶2            Mother is the biological parent of then 16-year-old Child. The
Department of Child Safety (“DCS”) took Child into custody in April 2018
after he had been shot in the foot and had not received appropriate medical
care. At the time, Mother was in jail with criminal charges pending. She
failed to arrange adequate care for Child during her incarceration and the
whereabouts of Father were unknown.1

¶3             As relevant here, DCS filed an amended dependency petition
alleging that Mother’s compromised mental health left Child at risk of
harm. Specifically, DCS identified Mother’s history of both in-patient and
out-patient mental health services, her self-reported PTSD diagnosis, and
her inability to provide Child with basic necessities as reasons justifying a
dependency.

¶4           At a contested dependency hearing, the State presented
evidence that Mother had broken into a woman’s home; worn the
homeowner’s clothing; attempted to “befriend” the homeowner’s dog; and
forged her name on the homeowner’s utility bills to demonstrate that she
owned the home. Based on her actions, she later pled guilty to burglary in


1       Initially, paternity had not been established. In addition to Eric C.,
the purported father, the court also recognized John Doe as an alleged
father. Neither Eric C. nor John Doe are parties to this appeal.


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                           REYNA A. v. DCS, E.C.
                            Decision of the Court

the second degree and received a three-year term of supervised probation.
As a special condition of probation, Mother was ordered to participate in
mental health services. Mother was offered mental health services by both
the probation department and DCS; however, she failed to participate
consistently.

¶5            At the conclusion of the contested dependency hearing, the
superior court found that DCS had proven the Child was dependent as to
Mother by a preponderance of the evidence, and it adjudicated Child
dependent. The court orally pronounced the following significant factual
findings: (1) Mother failed to arrange for the care and supervision of Child
during her incarceration; (2) though currently on probation with mental
health terms, a petition to revoke Mother’s probation was pending based,
among other things, on her failure to actively participate and cooperate in
mental health and substance abuse services; (3) Mother had absconded
from probation and left the state without Child; and (4) Mother, by her own
admission, is addicted to prescription pain and anxiety medication. The
superior court found, based on the “bizarre series of facts” in the criminal
conviction, coupled with Mother’s mental health history, Mother needed
mental health services. The court concluded by finding that “Mother’s
mental health has interfered with her ability to parent [Child] safely,”
placing Child “in an unreasonable risk of harm.”

¶6             The court’s minute entry ruling did not include any factual
findings, however, instead stating only that “the allegations of the petition
are true by a preponderance of the evidence and the [C]hild is dependent
as to Mother. . . .” Mother filed a notice of appeal and contemporaneously
filed a motion to clarify the court’s ruling. She alleged the court “did not
satisfy the legal requirements” set forth in A.R.S. § 8-844(C)(1)(a) and Rule
55(E)(3) because it “did not outline what evidence it relied upon to make
the determination” of dependency. The superior court denied Mother’s
motion to clarify.

                                DISCUSSION

I.     Waiver

¶7             Arguing Mother failed to provide the superior court with an
opportunity to correct any error, DCS contends that Mother waived her
objection to the sufficiency of the court’s written findings by first raising the
issue in a motion to clarify filed contemporaneously with her notice of
appeal. Rule 103(F), however, allows the superior court to rule on issues “in
furtherance of the appeal” even after the notice of appeal is filed.



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                           REYNA A. v. DCS, E.C.
                            Decision of the Court

¶8             Here, Mother sought clarification from the superior court at
the same time she preserved her right to appeal from the court’s ruling. This
is precisely the procedure advocated by the dissent in Logan B. v. Department
of Child Safety, 244 Ariz. 532 (App. 2018). In that case, the dissent concluded
that the parent waived his ability to challenge the lack of written findings
because he failed to seek clarification from the superior court. Id. at 541–42,
¶¶ 24–32. As the dissent explained, “the goal is to provide the [superior]
court and the opposing party with the opportunity to correct errors in the
termination order.” Id. at 541, ¶ 30. Had the parent in that case both sought
clarification in the superior court and filed a notice of appeal, he would
have preserved his claim on appeal in the event the superior court denied
his motion to clarify. Id. Although Logan B. addressed the requirement of
written findings in a termination order rather than in the dependency
context, the same logic holds true here. To challenge a superior court’s
failure to provide written findings, the better practice is to seek redress from
the superior court while still preserving the right to appeal. Id. at 535.

¶9             Against this backdrop, we turn to the superior court’s denial
of Mother’s motion for clarification. In that ruling, the court explained,
“[n]either the rule (Rule 55) nor the statute (A.R.S. § 8-844) require[] the
court to ‘set forth in writing’ the findings of fact or the factual basis (for the
court’s ruling).” We disagree.

II.    Which controls―the Rule or the Statute?

¶10            We review the interpretation of statutes and court rules de
novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018). Unlike
the termination statute, the plain language of the dependency statute does
not require the court to make written findings. Compare A.R.S.
§ 8-844(C)(1)(a) with A.R.S. § 8-538(A). In contrast, Rule 55(E) requires that
“[a]ll findings and orders shall be in the form of a signed order or contained
in a minute entry.”

¶11            When a statute and a court rule are in procedural conflict, the
rule controls.

       The Arizona Constitution commands that the legislative,
       executive, and judicial departments “shall be separate and
       distinct, and no one of such departments shall exercise the
       powers properly belonging to either of the others.” The
       Constitution also vests this Court with “[p]ower to make rules
       relative to all procedural matters in any court.”




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                            REYNA A. v. DCS, E.C.
                             Decision of the Court

Seisinger v. Siebel, 220 Ariz. 85, 88, ¶ 7 (2009) (quoting Ariz. Const. art. 3, art.
6, § 5(5).

¶12           Because Rule 55(E) controls, the superior court is required to
make written findings supporting a dependency order akin to the
requirement for written findings in the termination context. Compare Rule
55(E)(3) with Rule 66(F)(2)(a). The rationale for the requirement of written
findings set forth in Logan B. is equally applicable in the dependency
context according to the rules promulgated by the Arizona Supreme Court.

¶13           Here, the superior court made specific oral findings in
support of the factual basis for a dependency finding, satisfying the
statutory requirements set forth in A.R.S. § 8-844. Rule 55(E), however,
requires more―written factual findings in support of a dependency in
either a signed order or a minute entry.

                                 CONCLUSION

¶14          For the foregoing reasons, we vacate, remand, and direct the
court to comply with Rule 55(E).




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




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