                                 NOTICE: NOT FOR PUBLICATION.
       UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                       AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                        IN THE
                  ARIZONA COURT OF APPEALS
                                    DIVISION ONE


                                ANGEL O., Appellant,

                                            v.

    ARIZONA DEPARTMENT OF CHILD SAFETY, 1 J.M. and L.A., Appellee.

                                 No. 1 CA-JV 13-0297
                                  FILED 07-01-2014


              Appeal from the Superior Court in Yavapai County
                           No. V1300JD201280006
                   The Honorable Anna C. Young, Judge

                                      AFFIRMED


                                      COUNSEL

The Ledbetter Law Firm, P.L.C., Cottonwood
By James E. Ledbetter, Kelley J. Ruda
Counsel for Appellant

Attorney General’s Office, Tucson
By Erika Z. Alfred
Counsel for Appellee

1 Pursuant to S.B. 1000, Section 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014)
(enacted), the Arizona Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
We refer to the agency in the body of our decision as ADES to be
consistent with the record from juvenile court.
                        ANGEL O. v. ADCS, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


T H O M P S O N, Judge:

¶1          Appellant Angel O. (grandmother) appeals from the
judgment of the family court denying her motion to change the physical
placement of her grandchildren, G.M. and A.L. (the children), to her.
Because we find that the family court did not abuse its discretion in
denying grandmother’s motion, we affirm.

            FACTUAL AND PROCEDURAL BACKGROUND

¶2            Grandmother is the mother of adult Melissa M. (mother).
Grandmother gave birth to mother in 1988 when she was fifteen years-old
and Child Protective Services provided her services, teaching her how to
bathe and dress the child and educating her about child development. At
age eleven, mother was sexually assaulted by grandmother’s first husband
who later went to prison for the offense. At fifteen, mother accused
grandmother’s second husband of sexually assaulting her and CPS again
became involved. 2 CPS took mother into custody, refusing to return
daughter while grandmother stayed with her second husband.
Grandmother repeatedly told her daughter that she could return home
only if she recanted the allegations. Mother remained in foster care until
the age of majority.

¶3            Mother then went on to have three children of her own
between 2008-2011. In July and September of 2011, CPS received reports
that mother was an unfit parent. In 2012, after additional reports that the
children were in danger and mother was threatening to kill herself, CPS
took the children into custody. Grandmother requested that the children
be placed with her. The Arizona Department of Economic Security
(ADES) denied her request after a home study. When ADES moved to
terminate the parental rights of mother and father, grandmother
petitioned to intervene in the dependency. Grandmother’s petition to


2   Grandmother asserts that mother later recanted this statement.



                                     2
                       ANGEL O. v. ADCS, et al.
                        Decision of the Court

intervene was granted. Grandmother renewed her request that the
children be placed with her. While that request was pending, the parties
to the severance, including grandmother, stipulated to “submitting the
[mother’s severance] matter on the record and having the court review the
exhibits.” The parents’ rights to the children were terminated.

¶4           Grandmother’s evidentiary hearing on placement took place
after mother’s and father’s parental rights were terminated. The family
court heard testimony from grandmother, a psychologist who evaluated
grandmother, a parental aid who observed visitations, and from the CPS
case manager. Neither the parental aid nor the psychologist noted any
current problem with grandmother having placement of the children.
The psychologist found grandmother optimistic and opined that she had
matured from her prior poor choices and now seemed to have good
judgment. The parental aide noted that grandmother exercised “good
safety guidelines during visitation” and the children’s “faces light[] up
when they see her.” Grandmother testified that since the first home
study, she was making more money, and that she had gotten a larger
apartment and her adult son had moved out. 3 Grandmother testified that
she loved the children, has matured from when she herself was a young
parent and was committed to raising the children.

¶5              ADES continued to object to grandmother’s request for a
placement of the children with her. The objection was based on safety
issues from an earlier home study and issues related to grandmother’s
financial stability, as well as her previous history with CPS and that
grandmother had failed to “follow through” with therapy during the time
she was parenting mother. A CPS report admitted without objection
noted grandmother had demonstrated a prior “inability to protect
children” and called her past parenting “questionable.” The caseworker
testified that it was ADES’s position that placement with the grandmother
was not in the children’s best interests. The caseworker testified that
ADES was moving towards adoption by the foster family and that result
was in the children’s best interests.

¶6           During the caseworker’s testimony, grandmother opposed
admission of three of ADES’s exhibits on the grounds that they were
inadmissible hearsay under Arizona Rule Procedure for the Juvenile
Court 45(C) because the employees who drafted the reports were not

3 Grandmother disclosed the move to CPS at a court hearing but did not
provide the new address.



                                   3
                         ANGEL O. v. ADCS, et al.
                          Decision of the Court

available for cross-examination.       Grandmother’s objections were
overruled by the family court because she had not objected to the exhibits
in writing before the trial.

¶7          Ultimately, the court denied grandmother’s motion to
change physical placement, noting:

       I’ve been the judge on this case for quite sometime and we
       don’t just have hearsay, what we’ve got is the fact that, you
       know, [grandmother] had a husband who was convicted of
       molesting [mother] and the minimization of what happened
       is troubling to this court. It’s clear to me that it wasn’t just
       the one bedroom apartment with some safety concerns that
       caused the denial of the home study.

       And I can tell you, based on the information I have so far I
       wouldn’t certify the grandmother to adopt these kids and so
       if I wouldn’t certify a grandmother under the circumstances
       to adopt these kids, I’m certainly not going to place little
       children who need permanency in a non-adoptive
       placement, and I’m not going to grant the motion for change
       of physical custody for that reason.

Grandmother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) (2003), -
2101(A)(4) (Supp. 2013), and 8-235(A) (2014).

                               DISCUSSION

¶8            On appeal grandmother asserts that the family court erred in
admitting CPS reports over her objection and in failing to properly
determine what was in the children’s best interests by failing to account
for her current situation and her current ability to care for the children.

¶9             Family courts have substantial discretion when handling the
placement of dependent children because the court's role is to determine
what is in the best interests of the children. See A.R.S. § 8–845(A)(2) (2011);
see also Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8, 187
P.3d 1115, 1117 (App. 2008). We review orders denying motions for
change in physical custody for an abuse of discretion. Antonio P., 218
Ariz. at 404, ¶ 8, 187 P.3d at 1117. An abuse of discretion occurs when a
decision is "manifestly unreasonable, or exercised on untenable grounds,
or for untenable reasons." Quigley v. City Court of City of Tucson, 132 Ariz.
35, 37, 643 P.2d 738, 740 (App. 1982).


                                      4
                        ANGEL O. v. ADCS, et al.
                         Decision of the Court

¶10            On appeal, grandmother asserts that the family court abused
its discretion in admitting Exhibits 48, 49, and 57 because the employees
who prepared the reports were unavailable for cross-examination. 4 [OB at
16] Rule 45(C) of the Rule of Procedure of the Juvenile Court provides
that reports by protective service workers shall be admitted into evidence
if the worker who prepared the report is available for cross-examination
and the reports were timely disclosed. Ariz. R. Juv. Ct. P. 45(C).
Noncompliance with the rules of procedure reviewed for harmless error
when an objection has been raised. See Monica C. v. Ariz. Dep't. of Econ.
Sec., 211 Ariz. 89, 94, ¶ 22, 118 P.3d 37, 42 (App. 2005); see also State v.
Henderson, 210 Ariz. 561, 567, ¶¶ 17-18, 115 P.3d 601, 607 (2005) ; State v.
Bible, 175 Ariz. 549, 588, 858, P.2d 1152, 1191 (1993) (when objections were
raised in the family court, the harmless error standard is applied). "The
test for determining harmless error is 'whether there was reasonable
probability . . . that a verdict might have been different had the error not
been committed.'" State v. Williams, 133 Ariz. 220, 225, 650 P.2d 1202, 1207
(1982).     The "erroneous admission of evidence which [is] entirely
cumulative constitute[s] harmless error." Id. at 226, 650 P.2d at 1208; see
also State v. Wilson, 113 Ariz. 363, 366, 555 P.2d 321, 324 (1976).

¶11           We have reviewed the objected to exhibits and the record in
this matter. At the underlying severance trial the parties, including
grandmother, stipulated to the admission of numerous exhibits. Because
the substance of the objected to exhibits can be found elsewhere in the
record or were events testified to during the evidentiary hearing, we find
that the evidence was cumulative and therefore harmless. See Williams,
133 Ariz. at 226, 650 P.2d at 1208.



4 Exhibit 48 contains grandmother’s biological information and notes that
grandmother requested CPS to place one of the children with her, that
grandmother has been a resource during prior CPS incidents and has been
utilized as a "safety monitor," and that a home study will be needed prior
to determining the children’s placement with grandmother. Exhibit 49
details CPS's status of services, reasons for why a home study had not yet
been completed for grandmother, notes regarding grandmother's role and
presence during the case manager's visits, and CPS's recommendations
regarding grandmother's presence in future visits. Finally, Exhibit 57 is a
report containing grandmother's biological information, an outline of
grandmother's motivation for wanting the children to be placed with her,
and a summary of grandmother's and mother’s prior history with CPS.



                                     5
                        ANGEL O. v. ADCS, et al.
                         Decision of the Court

¶12           Grandmother next asserts that the court abused its discretion
by failing to give adequate weight to her ability to properly care for the
children when determining their best interests. We do not find the family
court abused its discretion. The family court had a long exposure to this
family and was in the best position to determine what was in the
children’s best interests. There is substantial evidence in the record that
supports the family court’s decision denying grandmother’s motion for
physical placement of the children.

¶13           For the foregoing reasons, we affirm the family court’s
decision denying grandmother’s motion to change the physical placement
of the children.




                               :gsh




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