Dcs v. Hon. ryan/rosa F./et Al. ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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,
Petitioner,
v.
THE HONORABLE TIMOTHY J. RYAN, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
ROSA F.; CHRISTOPHER B.; KASSIDY B; I.F.; A.E.,
Real Parties in Interest
No. 1 CA-SA 17-0276
FILED 11-22-2017
Petition for Special Action from the Superior Court in Maricopa County
No. JA550305, JD527466
The Honorable Timothy J. Ryan, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Petitioner
Christina M. Lopez, Phoenix
Counsel for Real Parties in Interest Christopher B. and Kassidy B.
Law Office of Alane M. Ortega, P.L.L.C., Phoenix
By Alane M. Ortega
Counsel for Real Parties in Interest Rosa F.
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.
T H U M M A, Chief Judge:
¶1 This special action arises out of a dependency petition filed by
the Department of Child Services (DCS), resulting in the termination of
parental rights to two young children, followed by two competing petitions
to adopt those children.
¶2 The children’s maternal grandmother, Rosa F., filed a petition
to adopt on November 17, 2016. As the superior court noted, “[f]or no good
reason identified in the record,” the hearing on this petition was
rescheduled “again and again.”
¶3 Meanwhile, the children’s placement, Christopher and
Kassidy B., filed a petition to adopt on December 1, 2016. This petition was
granted the next day (in conjunction with a previously-scheduled adoption
of a third child), making Christopher and Kassidy B. the parents of the
children. As a result, the superior court dismissed the dependency on
December 2, 2016.
¶4 Various irregularities then came to light, which are not
detailed here. As relevant here, Rosa F. filed a motion to set aside the
adoption, which is scheduled to be heard on November 30, 2017.
¶5 On October 18, 2017, the superior court held an evidentiary
hearing addressing a variety of issues. The resulting 12-page minute entry,
filed as amended on October 27, 2017, provides some detailed procedural
background and includes numerous orders and rulings. The rulings
challenged by DCS here are: (1) “setting aside the December 2, 2016 Order
of Dismissal” that dismissed the dependency; (2) ordering “that DCS shall
2
DCS v. HON RYAN/ROSA F./ET AL.
Decision of the Court
have temporary legal custody” of the children; (3) ordering “that DCS shall
immediately initiate supervised therapeutic visitation between” Rosa F.
and the children; and (4) ordering “that DCS shall immediately arrange
sibling visits between” the children and their youngest sister. This minute
entry did not resolve Rosa F.’s motion to set aside the adoption, which
remains pending. After the court denied DCS’ motion to reconsider, this
timely petition for special action followed.
DISCUSSION
¶6 Special action jurisdiction is appropriate where petitioner has
no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P.
Spec. Act. 1(a). Although “highly discretionary,” Randolph v. Groscost, 195
Ariz. 423, 425 ¶ 6 (1999), “accepting special action jurisdiction is particularly
appropriate where the welfare of children is involved and the harm
complained of can only be prevented by resolution before an appeal,” Dep’t
of Child Safety v. Superior Court, 235 Ariz. 300, 303 ¶ 6 (App. 2014). As
applied, the challenged rulings implicate the best interests of the children
and there is no equally plain, speedy and adequate remedy by appeal.
Accordingly, in its discretion, this court accepts special action jurisdiction.
¶7 DCS argues the superior court lacked authority to issue the
challenged rulings, absent setting aside the adoption and or an allegation
and showing that the children are dependent. Given that the adoption has
not been set aside, Christopher and Kassidy B. are the parents of the
children “as though the child[ren] were born to the[m] . . . in lawful
wedlock.” A.R.S. § 8-117(A). Similarly, there is no allegation or showing
that the children are dependent as to Christopher and Kassidy B. See A.R.S.
§ 8-201(15). Nor did the parties cite to any other authority that would
authorize the challenged rulings.
¶8 Rosa F.’s response to DCS’ special action petition does not
claim any authority authorized the challenged rulings or cite to any such
authority. Instead, she argues that Arizona law “requires that this adoption
be set aside.” But the superior court has not yet resolved Rosa F.’s motion
to set aside the adoption, which is scheduled to be heard on November 30,
2017. And Rosa F. did not file a petition seeking special action relief.
Accordingly, she has provided no basis for this court to address, at this
time, whether the adoption should be set aside, an issue the superior court
has not yet resolved. See Ariz. R.P. Spec. Act. 3.
3
DCS v. HON RYAN/ROSA F./ET AL.
Decision of the Court
¶9 Because there was no authority to enter the challenged
rulings, they cannot stand. See In re Maricopa County Juv. Action No. JD-
05401, 173 Ariz. 634, 640 (App. 1993) (”Absent such an adjudication of
dependency, the court has no authority to order permanent placement of
the child or to monitor the conditions of that placement.”); In re Pima County
Juv. Dep. Action No. 98874, 161 Ariz. 231, 233 (App. 1989) (“absent a finding
of dependency, the juvenile court had no authority to order any placement
or to monitor the conditions of the placement”) (dicta).
CONCLUSION
¶10 Accepting special action jurisdiction, because there was no
authority to enter the challenged rulings, relief is granted to the extent that
the following rulings in the minute entry, filed as amended on October 27,
2017, are vacated: (1) “setting aside the December 2, 2016 Order of
Dismissal” that dismissed the dependency; (2) ordering “that DCS shall
have temporary legal custody” of the children; (3) ordering “that DCS shall
immediately initiate supervised therapeutic visitation between” Rosa F.
and the children; and (4) ordering “that DCS shall immediately arrange
sibling visits between” the children and their youngest sister. As noted
above, that minute entry addressed a variety of other matters. In granting
this relief, the other portions of the minute entry, filed as amended on
October 27, 2017, remain in full force.
AMY M. WOOD • Clerk of the Court
FILED: AA
4