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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


            DEPARTMENT OF CHILD SAFETY, S.P., Appellants,

                                         v.

                                JUAN P., Appellee.

                              No. 1 CA-JV 18-0015
                                FILED 5-24-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD 29446
              The Honorable Sally Schneider Duncan, Judge

                       VACATED AND REMANDED


                                    COUNSEL

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

Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellee
                           DCS, S.P. v. JUAN P.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge David D. Weinzweig joined.


B R O W N, Judge:

¶1           In this appeal we address whether the superior court erred in
granting a motion for change of physical custody in this dependency
proceeding. Because no reasonable evidence supports the court’s findings,
we vacate the court’s order and remand for further proceedings.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             S.P. was born in 2011. S.P.’s biological father, Juan P.
(“Father”), a citizen of Mexico, was convicted in 2005 of a felony involving
possession of drugs for sale. After serving “jail” time, he was arrested in
2012 while on probation and then deported to Mexico; he is not allowed to
return to the United States because there is an active warrant for his arrest
in California. S.P. went to live with Father in Mexico for approximately one
year when Father was deported in May 2012, but S.P. returned to the United
States in May 2013 to visit his mother (“Mother”), who is Father’s former
girlfriend, when S.P. was two years old. The visit with Mother turned into
an extended stay. Within a few months, Father lost contact with Mother
and S.P. but made no further efforts to find them, other than contacting
S.P.’s maternal aunt and uncle once, until mid-2015 when he learned S.P.
was in the care of the Department of Child Safety (“DCS”).

¶3            Meanwhile, S.P. had moved from California to Arizona with
Mother. In November 2014, DCS took S.P. into care, alleging neglect by
Father and neglect, substance abuse, and mental illness by Mother. S.P. was
found dependent in February 2015 when both his mother and Father failed
to appear, and due to their lack of participation, the superior court
accelerated a permanency planning hearing and changed the case plan to
severance and adoption. In August 2015, DCS filed a motion to terminate
Father’s parental rights based on abandonment. Father learned that S.P.
was in DCS custody in Arizona in April 2015; however, he did not contact
DCS until June 2015 and then once again in September 2015.




                                     2
                           DCS, S.P. v. JUAN P.
                           Decision of the Court

¶4            In April 2016, Father filed a motion under Arizona Rule of
Procedure for the Juvenile Court (“Rule”) 59, seeking the return of S.P. to
Father’s custody in Mexico. S.P. does not speak Spanish nor does he
remember living in Mexico. The superior court initially denied the motion,
finding “there would be substantial risk of harm to [S.P.’s] mental or
emotional health.” At the same time, however, the court “thought DCS had
not met its burden regarding the grounds of abandonment” and thus
ordered the parties to submit briefing on that issue in preparation for the
next court date.

¶5             After briefing, the superior court reversed its previous Rule
59 ruling and ordered that S.P. be “immediately” returned to Father in
Mexico. S.P. appealed and we vacated the superior court’s order that S.P.
be returned to Father’s physical custody, directing the court to hold a new
evidentiary hearing on a Rule 59 motion or conduct a severance trial before
S.P. could be moved from Arizona to Mexico. See S.P. v. Juan P.,
1 CA-JV 16-0446, 2017 WL 2125729, at *5, ¶ 20 (Ariz. App. May 16, 2017)
(mem. decision). Before the mandate issued, and without holding an
evidentiary hearing, the superior court entered orders dismissing the
dependency case, finding that Father was a fit parent, and, again, directed
that S.P. be “immediately” returned to Father. DCS again filed a petition
for special action and motion for emergency stay. We granted the stay and
the relief requested in the special action petition, concluding that the
superior court lacked jurisdiction to dismiss the dependency case while the
prior appeal regarding Rule 59 was still pending. See Dep’t of Child Safety v.
Duncan, 1 CA-SA 17-0150, 2017 WL 2953353, at *2-3, ¶¶ 6, 13 (Ariz. App.
July 11, 2017) (mem. decision).

¶6            In October 2017, the superior court held the evidentiary
hearing on Father’s second Rule 59 motion to return child, as directed by
this court. DCS opposed the Rule 59 motion, along with S.P.’s guardian ad
litem and S.P.’s attorney. Following the three-day evidentiary hearing,
during which the superior court received testimony and reports from three
experts, as well as testimony from Father, the DCS caseworker, the foster
father, and S.P.’s therapist, the court granted Father’s motion. In its minute
entry, the court adopted the reasoning, facts, and law presented in Father’s
closing argument and reply. In those filings, Father focused heavily on
DCS’s conduct and the harm it allegedly caused by failing to follow the
court’s orders in attempting to reunify S.P. with Father. Father argued that
DCS has created the situation S.P. is currently in by providing “bad
information” to service providers and therefore the harm that S.P. suffers is
now “unavoidable.” Additionally, Father argued that DCS should have the
burden to show that returning S.P. to Mexico would create a substantial risk


                                      3
                            DCS, S.P. v. JUAN P.
                            Decision of the Court

of harm to his physical, mental, or emotional health and safety, and DCS
failed to meet that burden.

¶7            The superior court provided additional analysis, reasoning in
part that DCS “unduly emphasized” the bond between S.P. and his foster
placement at the expense of Father’s biological bond with S.P., and thus
thwarted Father’s efforts to reunify with S.P. The court also focused on
Father being a “fit” parent, exceeding “the minimum parenting standards.”
The court found, by a preponderance of the evidence, that there would be
no substantial risk of harm to S.P.’s physical, mental, or emotional health or
safety if returned to Mexico.          The court then ordered that DCS
“immediately coordinate the return” of S.P. to Father in Mexico with the
assistance of the Mexican Consulate no later than 24 hours after the filing
of the order. DCS timely appealed and sought a stay of the Rule 59 order
pending the outcome of this appeal, which this court granted.

                               DISCUSSION

¶8             Rule 59 provides that a court shall return a child to his or her
parent if it “finds, by a preponderance of the evidence, that return of the
child would not create a substantial risk of harm to the child’s physical,
mental or emotional health or safety.” Ariz. R.P. Juv. Ct. 59(E)(1); see also
Arizona Revised Statutes (“A.R.S.”) section 8-861. We review an order
addressing the placement of a child for an abuse of discretion. Antonio P. v.
Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8 (App. 2008). The superior
court has “substantial discretion when placing dependent children because
[its] primary consideration in dependency cases is the best interest of the
child.” Id. We will not reweigh the evidence because the superior court “is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). Thus, we will accept
the court’s factual findings unless no reasonable evidence supports them.
Id. “Legal issues, including the correct legal standard to apply, are
reviewed de novo.” Dep’t of Child Safety v. Beene, 235 Ariz. 300, 304, ¶ 8
(App. 2014).

¶9            DCS argues that no reasonable evidence supports the
superior court’s finding that sending S.P. to Mexico to live with Father
would not create a substantial risk of harm to S.P.’s physical, mental, or
emotional health or safety. DCS further contends that the order is based on
legally irrelevant and incorrect information, rather than reasonable
evidence. Father counters, in part, that DCS waived its “reasonable
evidence” argument because it failed to specifically urge that argument in


                                      4
                            DCS, S.P. v. JUAN P.
                            Decision of the Court

the superior court. We disagree. Father does not cite, nor are we aware of,
any authority suggesting a party challenging a court’s ruling in a
dependency proceeding waives the right to challenge on appeal the
sufficiency of evidence supporting that ruling by failing to specifically raise
that argument in the superior court. And even assuming a party must do
so, DCS complied when it verbally requested judgment in its favor
immediately after Father rested his case.

¶10            In Father’s closing argument filings, he asserted that because
this case is “not typical” and neither Rule 59 nor A.R.S. § 8-861 explicitly
establishes which party bears the burden of proof, it is DCS’s burden to
show that returning S.P. to Mexico would create a substantial risk of harm
to his physical, mental, or emotional health. To the extent the superior court
placed the burden on DCS, the court erred. DCS, as the non-moving party,
is not required to prove the absence of any substantial risk of harm to S.P.’s
physical, mental, or emotional health or safety. Nothing in Rule 59
supports Father’s suggestion that he does not carry the burden of proof.
Moreover, at oral argument before this court, Father’s counsel implicitly
conceded that Father has the burden when counsel asserted that Father
“proved . . . by a preponderance of the evidence . . . that there would be no
substantial risk of harm to this child if the child goes home to [him].”
Therefore, as the moving party, and the one seeking to have S.P. removed
from foster care and returned to his care, Father bears the burden of
establishing, by a preponderance of the evidence, that S.P.’s return would
not create a substantial risk of harm to his physical, mental, or emotional
health or safety. See Palicka v. Ruth Fisher Sch. Dist. No. 90 of Maricopa Cty.,
13 Ariz. App. 5, 9 (1970) (“It is the general rule that the party asserting the
affirmative of an issue has the burden of proving it.”); cf. A.R.S. § 25-408(G)
(stating that when a court determines whether to allow a parent to relocate
a child, the “burden of proving what is in the child’s best interests is on the
parent who is seeking to relocate the child”).

       A.     Fit Parent

¶11            In his psychological evaluation with Dr. Carlos Vega, a
clinical psychologist, Father stated he felt the need and responsibility to do
all he could to get S.P. back into his care. He explained that if he were
allowed several visits with S.P., he would be able to realize if S.P.’s return
would be injurious to S.P. Father testified that although he speaks very
little English and S.P. does not speak any Spanish, he finds it important for
parents to be able to communicate with their child. Additionally, Father
testified that he has participated in parenting classes and counseling and
feels that S.P. will adapt to life in Mexico with him once he is there and is


                                       5
                            DCS, S.P. v. JUAN P.
                            Decision of the Court

given attention. According to Dr. Vega, Father loves S.P. and wants the best
for him. But Father testified he would still want S.P. to be sent to Mexico to
live with him even if a psychologist determined S.P. would be mentally
harmed as a result.

¶12           As the superior court concluded, by all accounts Father is a fit
parent and is prepared to bring S.P. into his home in Mexico. He
participated in a home study, he is currently parenting S.P.’s full and half-
siblings, and has adequate income to take on such responsibilities.
Although he did not provide supporting documentation, Father has located
a school with an English tutor ready for S.P. and he has secured a therapist
for S.P. Dr. Vega based his assessment of Father being “more than
minimally adequately capable” of parenting S.P. on the “unconditional
love” that Father has for him. Dr. Vega, however, never evaluated S.P, and
stated he has no specific knowledge of any of the issues, either
psychological, behavioral, or otherwise, that S.P. may have. And Dr. Vega
acknowledged his assessment would be different if Father would still want
S.P. returned to him even if a psychologist determined that S.P. would be
mentally harmed. Upon further questioning, Dr. Vega stated he would
have “grave concern[s]” and Father’s psychological evaluation “would
have been a very different” one if Father wanted S.P. returned to him
immediately, regardless of the psychological impact he may suffer. He
further testified that his assessment of Father being “fit” would
“[a]bsolutely” change if Father actually conceded to such a statement.

¶13            The superior court erred to the extent it relied on Father being
a “fit” parent when it granted his Rule 59 motion. Rule 59’s focus is not on
whether a parent is fit, but instead whether there would be a substantial
risk of harm to a child’s physical, mental, or emotional health and safety if
that child is to be returned to their parent. See Ariz. R.P. Juv. Ct. 59(E)(1).
Indeed, application of the rule in this manner is consistent with Dr. Vega’s
report, where he concluded that the “issue of reunification is not one of
parental competency but rather it is [] one that involves the best interest of
the child, which is beyond the scope of this evaluation.”

¶14           Additionally, compliance with a case plan does not equate to
a finding that a child is not at risk of harm under Rule 59, as this court
previously explained. See S.P., 1 CA-JV 16-0446, at *4, ¶ 16. Rather, Rule 59
only requires that the court consider noncompliance with a case plan as
evidence of a substantial risk of harm. Id.; Ariz. R.P. Juv. Ct. 59(D) (“The
court shall consider the failure of the parent . . . to comply with the terms of
the case plan as evidence that return of the child would create a substantial
risk of harm to the child.”). As noted in the closing argument submitted by


                                       6
                            DCS, S.P. v. JUAN P.
                            Decision of the Court

child’s counsel, Father’s compliance with services does not establish “any
greater or lesser likelihood that a child may be harmed if returned to a
parent.”

¶15            Based on our review of the appellate briefing, the hearing
transcripts and exhibits, the closing arguments, and the superior court’s
ruling, we are unable to conclude that reasonable evidence supports the
court’s Rule 59 order. While Father presented some evidence that returning
the child to him would not create a substantial risk to the child’s physical
safety, the record lacks any reasonable evidence showing that returning the
child to Father would not create a substantial risk of harm to the child’s
mental or emotional health.

¶16           Dr. Amber LaMonte, a clinical psychologist, testified that
given S.P.’s circumstances, it would be “traumatic” to move him at this
point. Her opinion was based in part on her observation of S.P.’s recorded
video conference visits with Father, where S.P. appeared very “withdrawn”
and would not look up at the camera. S.P.’s foster father also testified that
S.P.’s teachers notice when he has such visits with Father. After the visits,
S.P. does not want to engage with his teachers, participate in class, and does
not get along with the other students as well as he had; S.P. does a “reset”
and reverts to his earlier struggles, acting withdrawn and unsocial.
Dr. LaMonte concluded that based on current circumstances, S.P. would
suffer emotional or mental harm if placed with Father.

¶17            Dr. Elizabeth Capps-Conkle, a licensed psychologist and
certified expert trauma professional who performed S.P.’s bonding and best
interests evaluations, testified there is an “emotional risk” if S.P. were to be
returned to Father in Mexico right now due to Father’s lack of emotional
attunement and expectations that S.P. would need to make all the
adjustments rather than Father making some adjustments to him. In his
interview with Dr. Capps-Conkle, S.P. stated he did not want to go to
Mexico and if he was ordered by the court to do so, he would tell his “Mom”
(indicating his foster mother) and run away when he gets older. According
to S.P., he does not want to seek a relationship with Father. S.P.’s therapist,
however, encourages S.P. to pursue a relationship with Father but the
relationship does not seem to be improving. Dr. Capps-Conkle concluded
there would be a “an emotional risk to the child to be sent to Mexico to live
with Father without Father making significant improvement in his ability
to be emotionally responsive to the child.”

¶18         Dr. Capps-Conkle was also concerned with Father’s ability to
be emotionally responsive to S.P. when Father feels that he has done


                                       7
                            DCS, S.P. v. JUAN P.
                            Decision of the Court

everything correct and does not see problems with his interactions with S.P.
She acknowledged that additional services, such as a therapist, to help
Father and S.P. better communicate, would have been an appropriate
service to aid in their communication had such services been provided to
them by DCS. Finally, she testified that if Father still wanted S.P. to return
to Mexico even if it was determined that moving him would cause risk of
substantial harm, such a move could have “long-term effects of . . .
depression, anxiety, mental health issue[s], [and] inability to function well
academically.”

¶19            Moreover, no evidence supports the superior court’s decision
to order the “immediate” return of S.P. to Father. In his April 2017 report,
Dr. Vega explained that he “was left with the distinct impression that after
‘six or seven visits’ [Father] would likely relinquish his parental rights.” At
the Rule 59 hearing, Dr. Vega testified that any transition S.P. makes would
have to be “slow.” He explained that he never meant to give the impression
that a successful transition would be an immediate one, and that Father’s
psychological evaluation would be “very different” if Father indicated that
he wanted S.P. back “tomorrow.” Thus, the superior court’s order for
immediate return of S.P. goes beyond even what Dr. Vega suggested was
appropriate to safeguard S.P.’s mental health.

       B.     DCS’s Conduct

¶20            The superior court found that DCS promoted foster
placement’s bond in an effort to advance their interests in adopting S.P.
while simultaneously subordinating Father’s fundamental liberty interest
in the care, custody, and management of his child. See Santosky v. Kramer,
455 U.S. 745, 753 (1982) (“The fundamental liberty interest of natural
parents in the care, custody, and management of their child does not
evaporate simply because they . . . have lost temporary custody of their
child to the State.”). The court also criticized DCS for “comment[ing] in a
disparaging manner” about Father living in Mexico and concluded that
DCS, based on its “biases and prejudices,” is advancing a position that it is
within S.P.’s best interests to be raised in the United States over Mexico.

¶21            We take no position on DCS’s alleged actions, comments, or
motives because Rule 59 focuses on the likelihood of a substantial risk of
harm to S.P.’s physical, mental, or emotional health or safety. To the extent
the court relied on DCS’s actions, or lack thereof, as support for granting
Father’s motion, the court erred. Again, the narrow question in a Rule 59
proceeding does not turn on the fundamental right to parent a child;
instead, it is based on the plain language of the rule—whether there is a


                                      8
                           DCS, S.P. v. JUAN P.
                           Decision of the Court

substantial risk of harm to the child. See supra ¶ 13. To the extent DCS may
have failed to comply with the superior court’s orders or statutory
obligations, the superior court has other options it may rely on to ensure
compliance with its orders. But such failures are irrelevant in deciding
whether Father met his burden under Rule 59.

       C.     Abandonment

¶22           Although there is no motion for termination currently
pending in the superior court, the court nonetheless discussed the lack of
evidence supporting DCS’s theory, based on the prior motion for
termination. The court found that DCS “sought persistently and
substantially” to restrict Father’s access by failing to comply with court
orders to put reunification services in place, including visits, Spanish
language instruction, and appropriate therapy. The court then implicitly
concluded that Father did not abandon S.P., analogizing this case to the
attempted severance in Calvin B. v. Brittany B., 232 Ariz. 292, 293, ¶ 1 (App.
2013) (“[A] parent who has persistently and substantially restricted the
other parent’s interaction with their child may not prove abandonment
based on evidence that the other has had only limited involvement with the
child.”).

¶23           In doing so, the superior court failed to acknowledge this
court’s previous admonition that the superior court erred when it based its
2016 Rule 59 order on the “perceived weakness of DCS’s case for
abandonment.” S.P. v. Juan P., 1 CA-JV 16-0446, at *4, ¶ 15. DCS’s
likelihood of success on an abandonment ground is immaterial for
purposes of determining whether a substantial risk of harm to S.P.’s
physical, mental, or emotional health or safety would exist if he is returned
to Mexico to live with Father. See Ariz. R.P. Juv. Ct. 59(E).1




1       In June 2017, the superior court dismissed the severance motion DCS
had filed on August 3, 2015. According to the record before us, DCS has
not re-filed its motion for termination; however, it did object to the change
of the case plan to family reunification concurrent with severance and
adoption. Father asserted in his closing argument that DCS never objected
to the change of case plan, but our reading of the June 14, 2017 minute entry
reflects that DCS did make an objection. Regardless, the issue before us is
change of placement, not whether DCS can prove a statutory ground for
severance.



                                      9
                           DCS, S.P. v. JUAN P.
                           Decision of the Court

                              CONCLUSION

¶24            The record lacks reasonable evidence showing that the
immediate return of S.P. to Mexico to live with Father would not cause a
substantial risk of harm to S.P.’s physical, mental, or emotional health and
safety. Father therefore failed to meet his burden of proof. Accordingly,
we vacate the superior court’s Rule 59 order and remand for further
proceedings consistent with this decision. We also vacate our February 16,
2018 order granting DCS’s motion for stay.




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




                                       10
