                                   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 8-7-2018


           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



                                 OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in
which Judge Maria Elena Cruz and Judge David D. Weinzweig joined.
                            DCS, S.P. v. JUAN P.
                            Opinion of the Court

B R O W N, Judge:

¶1           In this appeal we address whether the juvenile court erred in
granting a motion for change of physical custody filed pursuant to Arizona
Rule of Procedure for the Juvenile Court (“Rule”) 59. 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 in California. His biological father, Juan
P. (“Father”), was convicted in 2005 of a felony involving possession of
drugs for sale. Father served his jail sentence, but otherwise failed to
complete probation. He was arrested in 2012 and deported to Mexico; he is
not allowed to return to the United States because there is an active warrant
for his arrest in California. When Father was deported in May 2012, S.P.
went to live with him in Mexico but returned to the United States in May
2013 to visit his mother (“Mother”). The visit with Mother turned into an
extended stay. Within a few months, Father lost contact with Mother and
S.P. and for nearly two years made no efforts to find them, other than
contacting S.P.’s maternal aunt and uncle once. In mid-2015, Father again
sought to contact them after 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 he was
dependent as to Father because of neglect and dependent as to Mother
because of neglect, substance abuse, and mental illness. DCS also alleged
that Father was never married to Mother and he did not have a custody
order or a child support order as to S.P. The juvenile court found that S.P.
was dependent in February 2015 when both parents failed to appear, and
due to their lack of participation, the 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 and then once
again in September.

¶4              In April 2016, Father filed a Rule 59 motion seeking the return
of S.P. to his physical custody in Mexico. The juvenile 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


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                            Opinion of the Court

abandonment” and thus ordered the parties to submit briefing on that issue
before the next court date.

¶5            After briefing, but on the same factual record, the juvenile
court reversed its prior ruling and ordered that S.P. be “immediately”
returned to Father in Mexico. On appeal, we vacated the 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 termination hearing
before S.P. could be moved from Arizona to Mexico. 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 court entered orders dismissing the dependency
case, finding that Father was a fit parent and, again, directing that S.P. be
“immediately” returned to Father. DCS 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 juvenile court
lacked jurisdiction to dismiss the dependency case while the prior appeal
regarding Rule 59 was still pending. 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 juvenile court held the evidentiary
hearing on Father’s second Rule 59 motion, as directed by this court. DCS
opposed the motion, as did S.P.’s guardian ad litem and S.P.’s attorney.
Following the three-day hearing, during which the 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 and 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
successfully sought a stay of the Rule 59 order from this court pending the
outcome of this appeal.

                               DISCUSSION

¶7             Rule 59(E)(1) and Arizona Revised Statutes (“A.R.S.”) section
8-861 provide that on request by a parent, the juvenile court shall return a
child to the 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.” The juvenile court has
“substantial discretion when placing dependent children because [its]
primary consideration in dependency cases is the best interest of the child.”
Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8 (App. 2008). We


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                             Opinion of the Court

review an order addressing the physical custody of a child for an abuse of
discretion, id., but we review legal issues de novo, Dep’t of Child Safety v.
Beene, 235 Ariz. 300, 304, ¶ 8 (App. 2014). We will not reweigh the evidence
because the juvenile 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.

       A.     Substantial Risk of Harm

¶8            DCS argues that no reasonable evidence supports the juvenile
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 the juvenile
court. But 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 address it in the juvenile
court. And even assuming a party must do so, DCS complied when its
counsel orally requested judgment in its favor immediately after Father
rested his case.

¶9             In Father’s closing argument filings on the motion, 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 or
safety. To the extent the juvenile court placed the burden on DCS, the court
erred. DCS, as the non-moving party, is not required to prove the absence
of such risk. Nothing in Rule 59 supports Father’s suggestion that he does
not carry the burden of proof. Therefore, as the moving party, and the one
seeking to have S.P. returned to his care, Father bears the burden of
establishing 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



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                            DCS, S.P. v. JUAN P.
                            Opinion of the Court

is in the child’s best interests is on the parent who is seeking to relocate the
child”).

¶10            In its Rule 59 order, the juvenile court adopted the reasoning,
facts, and law presented in Father’s closing argument and his 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 DCS created S.P.’s situation by
providing “bad information” to service providers and therefore “harm and
suffering are unavoidable.” The court added more 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 therefore 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 he is returned to Father.

¶11            Father argues that the opinion provided by Dr. Carlos Vega,
a clinical psychologist, supports the juvenile court’s decision. In his
psychological evaluation with Dr. Vega, Father stated he felt the need and
responsibility to do all he could to have 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 acknowledged he speaks
very little English and S.P. does not speak any Spanish, but explained 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 given attention.

¶12            Dr. Vega testified that Father is “more than minimally
adequately capable” of parenting S.P., and Dr. Vega had no safety concerns
regarding a child in Father’s care. According to Dr. Vega, Father loves S.P.
and wants the best for him. Father testified, however, 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. Moreover, Dr. Vega based his
assessment of Father’s parental fitness on the “unconditional love” that
Father has for S.P. But Dr. Vega never evaluated S.P., and acknowledged
he has no specific knowledge of any of the issues, either psychological,
behavioral, or otherwise, that S.P. may have. Dr. Vega also testified that 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 “very
different” if Father wanted S.P. returned to him immediately, regardless of


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                             DCS, S.P. v. JUAN P.
                             Opinion of the Court

the psychological impact he may suffer. He added that his assessment of
Father being “fit” would “[a]bsolutely” change if Father actually made such
a statement.

¶13            As the juvenile 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 he has adequate income to take on such responsibilities.
Although he did not provide supporting documentation, Father explained
that he located a school with an English tutor ready for S.P. and secured a
therapist for S.P.

¶14            The juvenile court erred, however, to the extent it relied on
Father being a “fit” parent because Rule 59’s primary focus does not turn
on parental fitness, but instead on whether there would be a substantial risk
of harm to a child’s physical, mental or emotional health or safety if a child
is returned to his or her parent. See Ariz. R.P. Juv. Ct. 59(A), (E)(1);
Alexander M. v. Abrams, 235 Ariz. 104, 107, ¶ 17 (2014) (recognizing that for
disposition hearings, a court must “consider the health and safety of the
children as its paramount concern,” and specifically for reunification
orders, the “court cannot determine that return to the parents is in the
child’s best interests if it has not . . . considered the child’s health and safety
and whether the child would be subject to a substantial risk of harm if
returned”) (quoting A.R.S. § 8-845(B)). Although a fit-parent determination
may be a pertinent factor in a particular case, especially if the parent is unfit,
such a finding does not lower the parent’s burden of establishing that return
of the child would not create a substantial risk of harm. Indeed, applying
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.”

¶15           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
S.P.’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.”


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                            DCS, S.P. v. JUAN P.
                            Opinion of the Court

¶16            Based on the record before us, we are unable to conclude that
reasonable evidence supports the court’s Rule 59 order. While Father
presented some evidence that returning S.P. to him would not create a
substantial risk to S.P.’s physical safety, the record lacks any reasonable
evidence showing that returning S.P. to Father would not create a
substantial risk of harm to S.P.’s mental or emotional health or safety.

¶17           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. Dr. LaMonte concluded that based
on current circumstances, S.P. would suffer emotional or mental harm if
placed with Father.

¶18            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 his expectations that S.P. would need to make all the
adjustments rather than Father making some adjustments. 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. Based on S.P.’s
behavior, Dr. Capps-Conkle concluded that S.P. does not want to seek a
relationship with Father. She opined that there would be “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.”

¶19           Dr. Capps-Conkle further explained that she was concerned
with Father’s ability to be emotionally responsive to S.P. because Father
feels he has done everything correctly 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
appropriate. 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, it would cause her concern because such a move could
have “long-term effects of . . . depression, anxiety, mental health issue[s],
[and] inability to function well academically.”

¶20           Additionally, no evidence supports the juvenile court’s
decision to order the “immediate” return of S.P. to Father. In his April 2017


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                            Opinion of the Court

report, Dr. Vega explained that Father “wants what is best for his son” and
that “the last thing he wants to do is psychologically injure his child.”
Given those comments, and Father’s desire to see where things might stand
after “several visits,” supra ¶ 11, Dr. Vega noted that he “was left with the
distinct impression that after ‘six or seven visits’ [Father] would likely
relinquish his parental rights.” And 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 different if Father indicated he wanted S.P. back
“tomorrow.” Thus, the juvenile 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

¶21            In further support of its order denying the Rule 59 motion, the
juvenile court found that DCS promoted the foster placement’s bond in an
effort to advance the placement’s 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 in S.P.’s best interests to
be raised in the United States over Mexico.

¶22           We take no position on DCS’s alleged actions, comments, or
motives as part of this appeal 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 DCS may have failed to comply with the juvenile
court’s orders or statutory obligations, in this case or in any case, the
juvenile court may consider various options to ensure compliance. See Ariz.
R.P. Juv. Ct. 59(E)(3), (6) (authorizing the juvenile court, when issuing
findings and orders, to “[s]et additional hearings as required by law” and
to “enter any other orders as may be appropriate or required by law”);
Alexander M., 235 Ariz. at 107, ¶ 15 (“[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].’”) (quoting Maricopa Cty., Juv. Action No. JD-
6236, 178 Ariz. 449, 452 (App. 1994)). Stated differently, DCS’s alleged


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                            DCS, S.P. v. JUAN P.
                            Opinion of the Court

deficiencies in this dependency are not relevant to deciding whether Father
met his burden under Rule 59.

       C.     Abandonment

¶23            Although there was no motion for termination pending in the
juvenile court at the time of the Rule 59 hearing, the court nonetheless
discussed the lack of evidence supporting DCS’s abandonment theory. 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 Calvin B. v. Brittany B., 232 Ariz.
292, 293, ¶ 1 (App. 2013), where we held that “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.”

¶24           In doing so, the juvenile court failed to acknowledge our
previous admonition that it erred in this case when it based its first Rule 59
order on the “perceived weakness of DCS’s case for abandonment.” See
S.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
returning S.P. to Father in Mexico would create a substantial risk of harm
to S.P.’s physical, mental or emotional health or safety. See Ariz. R.P. Juv.
Ct. 59(E).

¶25          Finally, we recognize that in June 2017, the juvenile court
dismissed the severance motion DCS had filed in August 2015. According
to the record before us, DCS has not re-filed its motion for termination;
however, it did object to changing 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 physical custody, not
whether DCS can ultimately prove a statutory ground for severance.




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                          Opinion of the Court

                             CONCLUSION

¶26           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 mental or emotional health and safety.
Father therefore failed to meet his burden of proof. Accordingly, we vacate
the juvenile court’s Rule 59 order and remand for further proceedings
consistent with this decision.




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




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