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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              In re the Matter of:

                CAROLYN MORGAN, Petitioner/Appellant,

                                        v.

       IMAN ALI and KAYSAN MORGAN, Respondents/Appellees.

                           No. 1 CA-CV 16-0580 FC
                                FILED 7-25-2017


           Appeal from the Superior Court in Maricopa County
                           No. FC2015-001663
              The Honorable Katherine M. Cooper, Judge

                                  AFFIRMED


                                   COUNSEL

Cantor Law Group, P.L.L.C., Phoenix
By Nicholas Boca
Counsel for Petitioner/Appellant
                           MORGAN v. ALI, et al.
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Patricia K. Norris1 joined.


W I N T H R O P, Judge:

¶1            Carolyn Morgan (“Appellant”) appeals the family court’s
dismissal of her petition for grandparent visitation. Appellant argues the
family court abused its discretion in sua sponte dismissing her petition
without prejudice and that the dismissal violates her due process rights.
Because we do not have jurisdiction over Appellant’s appeal, we dismiss it.

                 FACTS AND PROCEDURAL HISTORY

¶2            Appellant is the biological mother of Kaysan Morgan
(“Father”). Father has three children with Iman Ali (“Mother”). The three
children, in addition to Father’s son from a previous relationship, live with
Father and Mother.

¶3             In November 2015, Appellant filed a petition for grandparent
visitation pursuant to Arizona Revised Statutes (“A.R.S.”) § 25-409(C)(2)
(2017),2 seeking visitation rights to Father’s three children with Mother.3 At
the time Appellant filed her petition, Father and Mother were not legally
married. Appellant argued visitation was in the children’s best interests
because Appellant “ha[d] been an important part of the [] children’s lives”


1      The Honorable Patricia K. Norris, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2        “The superior court may grant visitation rights during the child’s
minority on a finding that the visitation is in the child’s best interests and
that . . . [t]he child was born out of wedlock and the child’s legal parents are
not married to each other at the time the petition is filed.” A.R.S. § 25-
409(C)(2).

3      Appellant’s visitation rights to Father’s child from the previous
relationship are not at issue in this appeal.



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                            Decision of the Court

and because Appellant hoped “to provide a loving extended family
environment for the [] children.” Appellant further contended that Mother
and Father were denying her visitation rights “because of Mother’s strained
relationship with [Appellant].” Mother and Father responded, opposing
Appellant’s petition.

¶4            At a hearing on Appellant’s petition, Father advised the court
that he and Mother were legally married on December 2, 2015, and made
an oral motion to dismiss Appellant’s petition for lack of jurisdiction.4 The
court denied Father’s motion, citing Fry v. Garcia, 213 Ariz. 70, 138 P.3d 1197
(App. 2006) and stating that “the trial court has jurisdiction to consider a
visitation petition filed when the parents were not married even if the
parents subsequently wed.”5 The court later set the matter for trial.

¶5             Before trial, Appellant moved to vacate trial and stay
proceedings, explaining that she had filed a private dependency petition
“for the safety of the minor children” and requesting the court vacate the
trial and stay the resolution of the merits of her visitation request pending
resolution of the dependency action. The court vacated the trial and
dismissed the visitation petition. Appellant moved for reconsideration of
the dismissal, and the court denied that motion, clarifying that the dismissal
was without prejudice. Appellant timely appealed.6




4      Although Appellant has not provided us with the transcript from
that hearing, the court’s subsequent ruling indicates that Father argued the
court no longer had jurisdiction under A.R.S. § 25-409(C)(2) because Mother
and Father had married.

5       In Fry, the court did not hold that the grandparent’s entitlement to
visitation under § 25-409(C)(2) was preserved notwithstanding the parents’
subsequent marriage, but only that the court had subject matter jurisdiction
to hear and resolve that request. 213 Ariz. at 73, ¶ 12, 138 P.3d at 1200.

6      Neither Mother nor Father filed an answering brief. Although we
could treat their failure to respond as confessions of error, in our discretion,
we decline to do so. See McDowell Mountain Ranch Cmty. Ass’n, Inc. v.
Simons, 216 Ariz. 266, 269, 165 P.3d 667, 670 (App. 2007) (citing Nydam v.
Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994)).




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                                 ANALYSIS

¶6             “A dismissal without prejudice is not a final judgment and is
therefore generally not appealable.” Canyon Ambulatory Surgery Ctr. v. SCF
Ariz., 225 Ariz. 414, 418-19, ¶ 14, 239 P.3d 733, 737-38 (App. 2010). However,
A.R.S. § 12-2101(A)(3) (2016) provides that an appeal may be taken “[f]rom
any order affecting a substantial right made in any action when the order
in effect determines the action and prevents judgment from which an
appeal might be taken.”

¶7             Appellant acknowledges that the family court’s dismissal was
without prejudice. Nevertheless, she contends that the effect of the court’s
order is final because, now that Mother and Father are married, she is
precluded from refiling her claim for grandparent visitation under A.R.S.
§ 25-409(C)(2). Appellant concludes, therefore, that the family court’s
dismissal without prejudice is an appealable order that this court has
jurisdiction to consider.7 But the family court’s dismissal without prejudice
has not “determine[d] the action” in this case because although Appellant
may not currently qualify under A.R.S. § 25-409(C)(2), she may qualify at
some point in the future under that subsection or a different one.

¶8            Finally, the family court dismissed Appellant’s petition after
Appellant disclosed that she had initiated a private dependency action in
the juvenile court involving the three children. Neither the record on
appeal nor Appellant’s opening brief provide us with any information
pertaining to the status of that dependency action, but we are entitled to
assume the family court’s decision to dismiss the petition without prejudice
was, in part, to avoid issuing any orders that might conflict with any
determinations of the juvenile court in its consideration of the dependency
action.8 See A.R.S. § 8-202(F) (Supp. 2016) (stating that orders of the juvenile

7      Appellant seems to believe that, even assuming her visitation
petition was still pending, the family court could and would ignore the fact
of the parents’ marriage and the express requirements of the statutory
provision upon which Appellant relies to qualify for visitation rights. That
is incorrect. In short, regardless of whether the visitation petition was
dismissed or stayed, the facts do not support any suggestion that Appellant
had a substantive right to seek visitation under § 25-409(C)(2) once the
parents married.

8     A.R.S. § 8-842(B)(2) (2014) provides that, during dependency
proceedings, the juvenile court must “[d]etermine that [DCS] is attempting



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                          MORGAN v. ALI, et al.
                           Decision of the Court

court “take precedence over any order of any other court of this state except
the court of appeals and the supreme court to the extent that they are
inconsistent with orders of other courts”).

¶9            Because Appellant’s contention that she will be barred from
refiling her claim is speculative and insufficient to show that the family
court’s dismissal without prejudice “affect[ed] a substantial right,” the
family court’s order in this case is not an appealable order as contemplated
by A.R.S. § 12-2101(A)(3).9 Accordingly, we do not have jurisdiction over
Appellant’s appeal.

                               CONCLUSION

¶10          Appellant’s appeal is dismissed.




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




to identify and assess placement of the child with a grandparent or another
member of the child’s extended family . . . .” Thus, in the event that
Appellant’s allegations were substantiated and DCS became involved in the
dependency proceedings, Appellant could qualify as a placement for the
children.

9       Although this court can invoke its special action jurisdiction
“without regard to its appellate jurisdiction,” in the exercise of our
discretion, we decline to do so in this case. See A.R.S. § 12-120.21(A)(4)
(2016).


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