                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                          BRIONNA J., Appellant,

                                      v.

           DEPARTMENT OF CHILD SAFETY, A.V., Appellees.

                            No. 1 CA-JV 19-0017
                              FILED 7-9-2019


           Appeal from the Superior Court in Maricopa County
                             No. JD530462
               The Honorable Karen L. O’Connor, Judge

APPEAL DISMISSED; JURISDICTION ACCEPTED; RELIEF DENIED


                                 COUNSEL

David W. Bell Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
                         BRIONNA J. v. DCS, A.V.
                           Opinion of the Court



                                OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in
which Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined.


M c M U R D I E, Judge:

¶1            Brionna J. (“Mother”) appeals the juvenile court’s order
denying her motion to return her child, Anya, to her custody. We conclude
we lack appellate jurisdiction of Mother’s appeal because we hold that the
denial of an Arizona Rule of Procedure for the Juvenile Court (“Rule”) 59
motion to return the custody of a child to a parent is not a final and
appealable order. We will, however, treat the appeal as a special action,
accept jurisdiction but deny relief because, as discussed below, the issue is
moot.

             FACTS AND PROCEDURAL BACKGROUND

¶2           This appeal arises from a dependency action initiated against
Mother and Anya’s father, Christopher V. (“Father”), in November 2016.
When the dependency petition was filed, Mother and Father were living
separately and had been involved in a custody battle over Anya. In March
2017, the juvenile court adjudicated Anya dependent, placed Anya in
out-of-home care, and established the case plan for both Mother and Father
as family reunification. After more than a year of ongoing dependency
proceedings, Mother filed a motion requesting the court return Anya to her
custody according to Arizona Revised Statutes (“A.R.S.”) section 8-861 and
Rule 59. Father also filed a Rule 59 motion requesting Anya be returned to
his custody.

¶3            The court suggested deciding both parents’ Rule 59 motions
simultaneously, and the parties agreed. Mother argued that returning Anya
to her care was appropriate because Mother had completed all the services
provided to her by the Department of Child Safety (“DCS”). To support her
argument, Mother presented testimony concerning her successful
completion of parent-aide services and contended she had completed
therapy services with the Veteran’s Administration. In response, DCS,
Father, and Anya’s guardian ad litem argued Father was closer to
reunification with Anya than Mother, and, therefore, granting his Rule 59
motion over Mother’s was in Anya’s best interests. DCS, Father, and Anya’s


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                         BRIONNA J. v. DCS, A.V.
                           Opinion of the Court

guardian ad litem also expressed concern that while Mother had completed
some services, she had not made the behavioral changes necessary to regain
custody.

¶4            After the parties presented their arguments, the court opined
that “Father [was] a little bit further along than Mother to have reunification
with Anya,” and granted Father’s Rule 59 motion. The court stated that
“[b]ecause [it] granted Father’s Rule 59 motion, [it was] denying Mother’s
Rule 59 motion,” and explained that, “Father is more ready than Mother to
have Anya in his custody.” The court then granted Anya’s guardian ad
litem’s request to change physical custody of Anya to Father and
subsequently filed a signed minute entry reflecting its orders.

¶5            Mother filed a notice of appeal from the signed minute entry.
While this appeal was pending, DCS moved to change the physical custody
of Anya back to an out-of-home placement because an incident between
Anya and Father caused Anya to feel unsafe in Father’s home. The court
granted the motion, finding that continuing in-home placement would be
contrary to Anya’s welfare and that Anya’s placement with DCS was
consistent with her best interests.

                               DISCUSSION

¶6              Mother argues the juvenile court abused its discretion by
denying her Rule 59 motion because it had granted Father’s Rule 59 motion.
Mother contends the juvenile court could have granted both parents’ Rule
59 motions and then made custodial arrangements for the parents and
Anya. See Ariz. R. Fam. Law P. 5.1(a)(2) (“The juvenile division will hear
legal decision-making and parenting time issues until the dependency is
dismissed or the juvenile division defers jurisdiction to the family
division.”). 1 Before we can address the issue raised by Mother, however,
we must examine whether we have jurisdiction to decide an appeal from


1       Mother’s and Father’s Rule 59 motions, though heard
simultaneously, were not competing motions. A parent need not show he
or she is closer to reunification than the other parent to succeed on a Rule
59 motion, only that returning the child to his or her custody will “not create
a substantial risk of harm to the child’s physical, mental or emotional health
or safety.” If both parents independently meet the Rule 59 burden, the
juvenile court has the authority under Arizona Rule Family Law Procedure
5.1(a)(2), to determine “legal decision-making and parenting time issues”
for the child.



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                          BRIONNA J. v. DCS, A.V.
                            Opinion of the Court

an order denying a Rule 59 motion. See Maricopa County Juv. Action No.
J-79149, 25 Ariz. App. 78, 78 (1975) (“Before considering the merits of a
juvenile appeal, this Court conducts a preliminary review of the record in
order to determine whether or not it has jurisdiction.”).

A.     An Order Denying a Parent’s Rule 59 Motion is not a Final and
       Appealable Order.

¶7             “The Court of Appeals is a court of limited jurisdiction and
has only jurisdiction specifically given to it by statute.” Francisco F. v. ADES,
228 Ariz. 379, 381, ¶ 6 (App. 2011) (quoting Campbell v. Arnold, 121 Ariz. 370,
371 (1979)). Our jurisdiction over appeals from juvenile court rulings is
governed by A.R.S. § 8-235(A), which provides that “[a]ny aggrieved party
in any juvenile court proceeding . . . may appeal from a final order of the
juvenile court.” See also Ariz. R.P. Juv. Ct. 103(A) (“Any aggrieved party
may appeal from a final order of the juvenile court to the court of appeals.”).

¶8              Our supreme court has held that because 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). Yavapai County Juv. Action
No. J-8545, 140 Ariz. 10, 14 (1984). Instead, we must consider “the practical
effect that the . . . order would have on that right,” Maricopa County Juv.
Action No. JD-5312, 178 Ariz. 372, 374 (App. 1994), to decide whether the
given order “disposes of an issue such that it conclusively defines the rights
and/or duties of a party in a dependency proceeding in the juvenile court
of this state,” J-8545, 140 Ariz. at 15.

¶9           With these principles in mind, we now turn to whether the
juvenile court’s order denying Mother’s Rule 59 motion was a final and
appealable order. Rule 59(A) states that:

       At any time after the temporary custody hearing, a
       parent . . . may file a motion with the court requesting return
       of the child to the custody of the parent . . . . The court shall
       set a hearing to determine whether return of the child would
       create a substantial risk of harm to the child’s physical, mental
       or emotional health or safety.

After the hearing, Rule 59(E) controls the juvenile court’s disposition of the
motion and provides that the court shall either:

       1. Return the child to the parent . . . if the court finds, by a
       preponderance of the evidence, that return of the child would


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                          BRIONNA J. v. DCS, A.V.
                            Opinion of the Court

       not create a substantial risk of harm to the child’s physical,
       mental or emotional health or safety; or

       2. Affirm prior custody orders; and

       3. Set additional hearings as required by law; [and]

                                 *      *      *

       6. Make findings and enter any other orders as may be
       appropriate or required by law.

¶10            Unlike an order relieving DCS of its obligation to provide
reunification services, see Francisco F., 228 Ariz. at 381–82, ¶ 8, an order
terminating visitation, see JD-5312, 178 Ariz. at 374, or a dependency
disposition order, see Lindsey M. v. ADES, 212 Ariz. 43, 45, ¶ 8 (App. 2006),
an order denying a parent’s Rule 59 motion does not define or alter the
obligations or rights of a parent subject to the dependency proceedings. It
does not, for example, change the child’s dependent status, see J-8545, 140
Ariz. at 14 (orders determining or reaffirming a child’s dependent status are
appealable), nor does it have a “substantial impact” on a parent’s ability to
participate in services, but see Maricopa County Juv. Action No. JD-500116, 160
Ariz. 538, 542 (App. 1989) (order changing the placement of the child to
another state appealable because of its substantial impact on the appealing
parent’s ability to maintain contact with the child). The order, which keeps
the status quo of the dependency, merely reflects a finding that the parent
has failed to show, at the time of the hearing, that returning the dependent
child to the parent’s custody would not create a substantial risk to the
child’s health or safety. Likewise, nothing about an order denying a Rule 59
motion purports to be conclusive as the parent may refile the motion if
cause exists to do so. See Ariz. R.P. Juv. Ct. 59(A) (parent may file a motion
for return of the child “[a]t any time after the temporary custody hearing”
(emphasis added)). Thus, an order denying a Rule 59 motion is
interlocutory, and therefore not a final and appealable order. Cf. Gutierrez
v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017) (temporary parenting orders are
“merely preparatory to a later proceeding,” therefore, they are not
appealable and require a party to seek special action relief).

¶11           Our conclusion is bolstered by the practical ramifications of
holding that a parent may appeal an order denying a Rule 59 motion.
During the pendency of an appeal, the superior court lacks jurisdiction to
issue any orders in the case on appeal that would “legally or practically
prevent the appellate court from granting the relief requested on appeal.”
Ariz. R.P. Juv. Ct. 103(F); see also Bank of N.Y. Mellon v. Dodev, 246 Ariz. 1, 7,


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                          BRIONNA J. v. DCS, A.V.
                            Opinion of the Court

¶ 18 (App. 2018) (when an appeal is properly invoked, the superior court
cannot issue orders that would defeat or usurp the ability of the appellate
court to render a decision); Castillo v. Indus. Comm’n, 21 Ariz. App. 465, 467
(1974) (“The principle is well established that an appeal generally divests
the trial court of jurisdiction to proceed except in furtherance of the
appeal.”). Therefore, if a parent could appeal from an order denying a Rule
59 motion, the juvenile court would be unable to order the dependent child
returned to the custody of the appealing parent or to make any new
determination concerning placement of the child with that parent, lest the
appeal be rendered moot. But cf. Roberto F. v. DCS, 237 Ariz. 440, 442,
¶¶ 9–13 (2015) (juvenile court not divested of jurisdiction to order adoption
pending appeal of the termination-of-rights order in a separate proceeding
because “Rule 103(F) applies only to the case on appeal”). Such a result
would be contrary to the primary purpose of A.R.S. § 8-861 and Rule 59,
which is to “expedit[e] the process of finding permanent placement for
children.” Rita J. v. ADES, 196 Ariz. 512, 515, ¶ 10 (App. 2000). A contrary
conclusion would undermine the fundamental right that the expanded
concept of a final and appealable order in a juvenile proceeding was
designed to protect. See J-8545, 140 Ariz. at 14.

¶12         For these reasons, we lack appellate jurisdiction over
Mother’s putative appeal.

B.     Special Action Review of the Order Denying Mother’s Rule 59
       Motion is Appropriate, but Mother’s Claim has been Rendered
       Moot.

¶13             Although we lack appellate jurisdiction to decide whether the
court erred by denying Mother’s Rule 59 motion, we may nevertheless
“exercise our discretionary special action jurisdiction under appropriate
circumstances, even when the parties have not requested such relief.”
Phillips v. Garcia, 237 Ariz. 407, 410, ¶ 6 (App. 2015); see also A.R.S.
§ 12-120.21(A)(4) (court of appeals has “[j]urisdiction to hear and determine
petitions for special actions brought pursuant to the rules of procedure for
special actions, without regard to its appellate jurisdiction”). “Special action
jurisdiction is proper when a party has no equally plain, speedy, and
adequate remedy by appeal.” Phillips, 237 Ariz. at 409, ¶ 6; Ariz. R.P. Spec.
Act. 1(a); see also Rita J., 196 Ariz. at 515, ¶¶ 10–11 (parent has right to seek
special action review from juvenile court’s ruling after a permanency
hearing).

¶14         Given the fluid, time-sensitive nature of placement
determinations, we find it appropriate to exercise special action jurisdiction


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                        BRIONNA J. v. DCS, A.V.
                          Opinion of the Court

here. There can be little doubt that any remedy Mother might acquire by
appeal, were it available to her, “could hardly be characterized as equally
plain, speedy, or adequate.” Rita J., 196 Ariz. at 515, ¶ 10. Moreover, in
deciding whether to accept special action jurisdiction, we must exercise our
discretion “in light of the fundamental right at stake” in dependency
proceedings. J-8545, 140 Ariz. at 14. Thus, we will treat Mother’s appeal as
a petition for special action and accept jurisdiction.

¶15            However, before we can reach the merits, we must determine
whether Anya’s return to DCS’s custody and a foster-care placement has
caused this petition to become moot. “A case is moot when it seeks to
determine an abstract question which does not arise upon existing facts or
rights.” In re MH 2008-000028, 221 Ariz. 277, 281, ¶ 13 (App. 2009) (quoting
Contempo-Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229
(App. 1985)).

¶16           On April 13, 2019, while Mother’s appeal was pending, DCS
substantiated a report of neglect against Father. Shortly thereafter, DCS
held a removal team decision-making meeting to determine whether Anya
should remain in Father’s home. Mother attended the meeting but allegedly
became so disruptive that DCS asked her to leave. After the meeting, DCS
filed a motion asking the juvenile court to place Anya back in DCS’s care.
Mother did not object to the motion, and, on May 14, 2019, the court ordered
that Anya be placed in out-of-home care. In its order, the juvenile court
found that placing Anya into DCS’s custody was the “least restrictive”
placement available, its ruling was “consistent with [Anya’s] best
interests,” and continuation of Anya in Father’s home would be contrary to
her welfare. The court also specifically noted that Mother attended the
removal team decision-making meeting but was asked to leave.

¶17           The juvenile court’s subsequent order awarding temporary
custody of Anya to DCS and foster care has rendered Mother’s claims of
error regarding the original Rule 59 hearing moot. Regardless of what we
might say about the court’s decision to deny Mother’s Rule 59 motion in
January 2019, the juvenile court has now made new findings, based on the
circumstances as they exist today, that Anya’s placement in foster care is
the least restrictive placement available and is consistent with her best
interests. Implicit within those findings was a determination that placing
Anya in foster care was more consistent with Anya’s best interests than
other placement options, including Mother. See A.R.S. § 8-514(B) (DCS must
place a child in “the least restrictive type of placement available,” giving
preference to placement with a parent); Pima County Severance Action No.
S-1607, 147 Ariz. 237, 238 (1985) (“[T]he juvenile court will be deemed to


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                        BRIONNA J. v. DCS, A.V.
                          Opinion of the Court

have made every finding necessary to support the judgment.”). “[T]he
juvenile court is obligated to oversee the dependency case, to consider the
best interests of the child in every decision, and to ‘independently review
the decisions and recommendations of [DCS],’” including requests to
change custody of the dependent child. Alexander M. v. Abrams, 235 Ariz.
104, 107, ¶ 15 (2014) (quoting Maricopa County Juv. Action No. JD-6236, 178
Ariz. 449, 452 (App. 1994)).

¶18          This situation only further illustrates why special action
review of an order denying a Rule 59 motion is particularly appropriate.
Under the circumstances as they currently stand, however, we are
compelled to conclude Mother’s petition has become moot, and that we
must deny relief.

                              CONCLUSION

¶19           For the foregoing reasons, we conclude we lack appellate
jurisdiction of Mother’s appeal, accept special action jurisdiction but deny
relief.




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




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