Aurora M. v. Dcs, B.M. ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
AURORA M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.M., Appellees.1
No. 1 CA-JV 14-0264
FILED 7-9-2015
Appeal from the Superior Court in Maricopa County
No. JD22302
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL
Jeffrey M. Zurbriggen, Phoenix
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee
1The caption has been amended to safeguard the juvenile’s identity
pursuant to Administrative Order 2013-0001.
AURORA M. v. DCS, B.M.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined.
T H U M M A, Judge:
¶1 Aurora M. (Grandmother) appeals from the superior court’s
order denying her motion for change of physical custody for her grandson,
B.M. Finding no error, that order is affirmed.
FACTS2 AND PROCEDURAL HISTORY
¶2 Grandmother is the biological maternal grandmother of B.M.,
who was born approximately seven weeks premature in May 2012. B.M.
was born with intrauterine drug exposure to methamphetamines and
marijuana and had significant medical complications, including a
diaphragmatic hernia that required surgery. For nearly three months after
his birth, B.M. was in the hospital’s neonatal intensive care unit. B.M.
remains medically fragile and suffers from underdeveloped lungs, an
abnormal gastrointestinal tract, significant swallowing and feeding
difficulties, cerebral palsy and related medical issues.
¶3 The Department of Child Safety (DCS) took physical custody
of B.M. upon his release from the hospital and filed a dependency petition
on August 1, 2012. At that time, DCS considered Grandmother as a
placement but identified safety issues because B.M.’s mother still lived in
the home and DCS had previously investigated Grandmother when she
was parenting B.M.’s mother. DCS also had concerns that Grandmother did
not know how to meet B.M.’s significant needs. B.M. was placed with, and
has remained with, foster parents who have experience caring for medically
fragile children and who are potential adoptive parents. In September 2012,
the superior court appointed a Court Appointed Special Advocate (CASA).
2This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
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AURORA M. v. DCS, B.M.
Decision of the Court
See Ariz. Rev. Stat. (A.R.S.) § 8-523 (2015);3 see also Ariz. Code Jud. Admin.
§ 7-101.
¶4 By March 2013, B.M. was found dependent as to both parents
and the court adopted a case plan of family reunification with a concurrent
case plan of severance and adoption. In June 2013, at DCS’ request, the court
changed the case plan to severance and adoption. At about that same time,
Grandmother moved to intervene and to change physical custody (CPC),
asking that B.M. be placed in her physical custody. The court granted the
motion to intervene “for the limited purpose of” allowing Grandmother to
pursue the CPC motion. After the change in case plan, Grandmother made
commendable efforts to meet DCS’ requirements in order to be considered
as a placement for B.M. Grandmother also regularly attended B.M.’s
medical appointments and Grandmother no longer allowed B.M.’s mother
in her home.
¶5 The superior court received evidence on the CPC motion on
two days in February 2014, one day in March 2014 and one day in June
2014.4 The court closed the proceeding to the public, but denied
Grandmother’s request to exclude the CASA. See Ariz. R.P. Juv. Ct. 41(E);
see also id. 37(B) (“Participants”). The court then heard testimony from
various witnesses, including B.M’s doctors, Grandmother and the DCS
caseworker, received evidence and heard argument on the CPC motion.
When DCS sought to admit into evidence the CASA’s reports (which
recommended that B.M. “remain in his current placement” and that the
CPC motion “be denied”), Grandmother objected, arguing the CASA had
not testified and was not a party. The superior court sustained
Grandmother’s objection, but directed the CASA’s reports be filed to make
clear they were part of the record.
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
4 The parental rights of mother and father were terminated before the
evidentiary hearing on the CPC motion began and are not at issue in this
appeal.
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AURORA M. v. DCS, B.M.
Decision of the Court
¶6 After taking the matter under advisement, the superior court
denied the CPC motion in September 2014. After discussing B.M.’s medical
needs and the procedural history, the court’s minute entry noted a filing by
the guardian ad litem generally agreeing with the CPC motion. The court
also noted the “CASA filed her position statement with the Court. [DCS]
has consistently opposed changing the child’s physical custody as being
contrary to the needs and best interests of the child.” Mentioning the
testimony and evidence presented, the court found “the factual and legal
analysis supports the child remaining placed in his current placement with
the foster family where he has lived since his discharge from the hospital
and which is the only home he has known.” The court then found
Grandmother had not shown that changing B.M.’s custody was “without
undue risk or in the child’s best interests.” The court added that the
“touchstone” is B.M.’s best interests, “and the list and order of possible
placements in ARS § 8-514 reflects a preference rather than a mandate.”
“Under the totality of the circumstances, especially in view of the child’s
chronic medical needs as well as his emotional and psychological well-
being,” the court found B.M. “should remain in his current placement.”
¶7 Grandmother timely appealed and this court has jurisdiction
under A.R.S. §§ 8-235, 12-120.21(A)(1) and -2101(A)(1) and the Arizona
Rules of Procedure for the Juvenile Court 103–04.
DISCUSSION
¶8 Grandmother argues the superior court erred by: (1)
improperly considering the CASA’s reports; (2) placing the burden of proof
on Grandmother and (3) making findings unsupported by the record. This
court reviews matters of legal interpretation de novo, Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, 83 P.3d 43, 47 (App. 2004), while
placement orders for dependent children are reviewed for an abuse of
discretion, Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404 ¶ 8, 187
P.3d 1115, 1117 (App. 2008).
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AURORA M. v. DCS, B.M.
Decision of the Court
I. The Superior Court Did Not Improperly Consider The CASA’s
Reports.
¶9 Grandmother argues the superior court violated her due
process rights, her right to cross-examine witnesses “and several
evidentiary requirements” when the court’s decision “relied on” the
CASA’s reports, which were filed but had not been admitted in evidence.
Grandmother did not raise this issue with the superior court but argues on
appeal this purported reliance “was clear legal error” and “was clearly
fundamentally prejudicial.”
¶10 Among other things, by statute, a CASA “shall . . . [a]dvocate
for the child’s safety as the first priority” and “[g]ather and provide
independent, factual information to aid the court in making its decision
regarding what is in the child’s best interest.” A.R.S. §§ 8-522(E)(2), (3). The
CASA’s reports challenged here do just that.
¶11 Grandmother speculates that the superior court considered
the substance of the CASA’s reports because it noted, in the order denying
the CPC motion, that the “CASA filed her position statement with the
Court.” The CASA’s reports were filed without objection and there is no
claim the CASA could not properly have filed such reports. Moreover, there
is no indication that the superior court relied on the substance of those
reports in denying the CPC motion, as opposed to reciting that the reports
had been filed. In addition, Grandmother had known for months that the
CASA opposed the CPC motion. A CASA report filed in November 2013
(months after the filing of the CPC motion but months before the
evidentiary hearing on that motion), noted concerns about Grandmother’s
desire to have B.M. placed with her and recommended that B.M. “remain
in his current placement.” That report was considered by the court without
objection at a November 2013 report and review hearing where
Grandmother was present.
¶12 Grandmother speculates that the superior court considered
the substance of the CASA’s reports because it denied the CPC motion after
asking her to submit proposed findings of fact. The record does not support
an inference that, absent the CASA’s reports, the court would have granted
the CPC motion. At the end of the evidentiary hearing, the court asked
“who wants [the] findings of fact on this one? [DCS] really doesn’t care
because [DCS] wants me to deny the motion.” The superior court concluded
that “I think it’s your [Grandmother’s] motion, I think you should submit
findings – proposed findings of fact . . . to support a granting of the motion.”
This directive does not, somehow, suggest the court would have granted
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Decision of the Court
the CPC motion if it had not considered the substance of the CASA’s
reports.
¶13 Grandmother has not shown the superior court relied upon
the substance of the CASA’s reports in denying the CPC motion.
Accordingly, Grandmother has shown no error, let alone error that was
fundamental and prejudicial.
II. The Superior Court Did Not Err By Placing The Burden Of Proof
On Grandmother.
¶14 Grandmother argues that the superior court erred when it
required her “to not only bear the burden of proof but also to provide an
affirmative best interests finding, when in fact the statutes [A.R.S. §§ 8-514
and -845] require a presumption of placement with a grandmother and
require the State to prove a contrary best interests finding.” Although A.R.S.
§ 8-514 establishes an “order for placement preference,” it requires DCS to
“place a child in the least restrictive type of placement available, consistent
with the needs of the child.” A.R.S. § 8-514. Similarly, A.R.S. § 8-845
provides that, at a disposition hearing, the court has various placement
alternatives, including a grandparent “unless the court has determined that
such placement is not in the child’s best interests.” A.R.S. § 8-845(A)(2). As
noted by DCS, under these statues, “the order of placement . . . is a
preference, not a mandate.” Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
402, 405 ¶ 12, 187 P.3d 1115, 1118 (App. 2008).
¶15 “[C]onsideration of the child’s best interests permeates
dependency and severance proceedings.” Dep’t of Child Safety v. Beene, 235
Ariz. 300, 304 ¶ 9, 332 P.3d 47, 51 (App. 2014) (citations omitted); Antonio
P., 218 Ariz. at 404 ¶ 8, 187 P.3d at 1117. The statutory placement
preferences relied upon by Grandmother “do not mandate placing a child
with a person with an acceptable higher preference if the juvenile court
finds it in the child’s best interests to be placed with someone with a lower
preference.” Antonio P., 218 Ariz. at 403 ¶ 1, 187 P.3d at 1116. When ruling
on a CPC motion, as in every decision in a dependency, the touchstone is
the best interests of the child. See Alexander M. v. Abrams, 235 Ariz. 104, 107
¶ 15, 328 P.3d 1045, 1048 (2014). The superior court “‘is in the best position
to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.’” Jordan C. v. Ariz. Dep’t of Econ. Sec.,
223 Ariz. 86, 93 ¶ 18, 219 P.3d 296, 303 (App. 2009) (citation omitted). A
superior court’s factual findings will be affirmed unless they are clearly
erroneous or not supported by the record. See Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 377, 982 P.2d 1290, 1291 (App. 1998). This court views
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AURORA M. v. DCS, B.M.
Decision of the Court
the evidence in a light most favorable to sustaining the superior court’s
findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207 ¶ 2, 181
P.3d 1126, 1128 (App. 2008).
¶16 As applied, the superior court’s decision expressly
“prioritizes the needs and best interests of the child and avoids undue risk
to the protection and safety and stability of the child.” The court noted B.M.
“has chronic medical conditions that continue to necessitate that he be
closely monitored.” This finding is supported by reasonable evidence in the
record, including testimony from the doctors and the DCS caseworker.
Although Grandmother has made commendable efforts in learning about
B.M’s medical issues, and loves B.M., there is reasonable evidence in the
record to support the finding that B.M. should remain “in his current
placement with the foster family where he has lived since his discharge
from the hospital and which is the only home he has known.”
¶17 Nor has Grandmother shown the court incorrectly allocated
the burden of proof. Grandmother agreed at the beginning of the hearing
that, as the movant, she carried the burden of proof on the CPC motion.
And as noted above, that burden included a showing that granting the CPC
motion was in the best interests of B.M. See Alexander M., 235 Ariz. at 107 ¶
15, 328 P.3d at 1048. Accordingly, Grandmother has not shown the superior
court erred in allocating the burden of proof.
III. The Superior Court Did Not Make Findings Unsupported By The
Record.
¶18 Grandmother argues the superior court’s finding that B.M.
suffered from “lung, digestive and feeding issues” was unsupported by the
record and that the court “inappropriately” noted that familial “impact can
be realized without the necessity of having to change placement of the child
to the grandmother’s home.” This court views the evidence in the light most
favorable to upholding the superior court’s order and will affirm unless
there is no reasonable evidence to support it. See Michael J. v. Ariz. Dep’t. of
Econ. Sec., 196 Ariz. 246, 250 ¶ 20, 995 P.2d 682, 686 (2000).
¶19 Several doctors testified as to B.M.’s medical issues, as did
Grandmother herself. Witnesses also testified as to the interactions between
Grandmother and B.M. despite the fact that B.M. was placed with foster
parents. Grandmother essentially argues the evidence received should have
been weighed differently, something this court will not do. See Jesus M. v.
Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282 ¶ 12, 53 P.3d 203, 207 (App. 2002)
(citing cases). Similarly, Grandmother has not shown how the following
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Decision of the Court
observation was not supported by the record: “The Court is cognizant of
the positive impact upon the child to have a familial connection and
relationship. However, that impact can be realized without the necessity of
having to change placement of the child to the grandmother's home.” The
record supports the superior court crediting Grandmother’s love for B.M.
and her desire to care for B.M. However, the evidence also justifies the
emphasis on B.M.’s fragile medical condition and the denial of the CPC
motion. Accordingly, the superior court did not make findings
unsupported by the record.
CONCLUSION
¶20 Because the superior court did not err, the order denying
Grandmother’s motion for a change in physical custody is affirmed.
:ama
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