Edgar G. v. Dcs ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
EDGAR G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.R., E.R., Appellees.
No. 1 CA-JV 22-0057
FILED 9-27-2022
Appeal from the Court in Yuma County
No. S1400JD20210343
S1400JD20210344
The Honorable Stephen J. Rouff, Judge pro tempore
AFFIRMED
COUNSEL
Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee
EDGAR G. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Edgar G. (“Father”) appeals from the juvenile court’s order
finding children Jenny and Jackie1 dependent as to Father. Father argues
the juvenile court erred by denying his motion to set aside the dependency
finding. Father also claims the court violated his due process rights by
denying his request for new counsel at the hearing on his motion. We
conclude we lack jurisdiction to review Father’s claims. We also hold
sufficient evidence supports the court’s dependency judgment. Because the
trial court did not abuse its discretion by adjudicating the children
dependent, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Department of Child Safety (“DCS”) filed a dependency
petition alleging Jenny and Jackie were “dependent due to abuse and/or
neglect” as to Father. DCS alleged that Father was “unwilling or unable to
provide proper and effective parental care and control” by 1) failing to
provide a stable home environment with supervision and 2) exposing the
children to domestic violence. DCS offered evidence of at least three
domestic violence incidents between Father and the children’s mother
(“Mother”) in late 2020 and January 2021.
¶3 In January 2021, a DCS report stated that Father stabbed
Mother in the presence of one of the children. Mother sought an order of
protection, but she later requested that the order and criminal charges be
dismissed.
¶4 DCS’s report to the juvenile court provided Father might have
physically and sexually abused another child. DCS also observed that one
of Father’s children appeared to not be regularly eating, and both children
were congested and past due for several routine vaccinations. DCS found
1 We use pseudonyms to protect the children’s identities.
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Father “unwilling or unable to . . . meet the [the children’s] needs for food,
clothing, shelter, and/or medical or mental health care.” DCS could not
assess Father’s home because he never confirmed his address and made
statements such as “I sometimes stay here” or “I stop by sometimes.”
¶5 Mother is missing. DCS provided evidence that Father is a
person of interest in her disappearance. Border documentation shows
Father entered and exited Mexico on December 17, 2021. And on December
20, 2021, a body presumed to be Mother was found at Father’s family home
in Mexico.
¶6 On December 30, 2021, the court held a preliminary protective
hearing and admitted DCS’s report into evidence. Father denied the
allegations in the dependency petition. The court scheduled a pretrial
conference for February 24, 2022. Father signed a form agreeing to the date
and time of the conference.
¶7 On February 24, 2022, the bailiff called the case at the
scheduled pretrial conference time but received no response. The bailiff
could not find Father after looking outside the courtroom and in the lobby.
The court found Father’s absence “a concession to the allegations in the
dependency petition.” Given DCS’s previously admitted evidence in the
dependency report and Father’s absence at the pretrial conference, the court
found DCS satisfied its burden to prove the children were dependent
concerning Father. The court issued a minute entry memorializing these
findings on March 1, 2022.
¶8 On February 28, Father sent a letter to the court titled “Motion
for reconsideration,” in which he requested a new hearing. He claimed he
had been in the lobby at the time of the conference but did not hear the
bailiff call the case. On March 2, Father also filed a notice of appeal from the
juvenile court’s February 24 unsigned dependency findings. On March 3,
Father moved to set aside the unsigned dependency order, claiming that
default was not warranted because he was present in the courthouse at the
scheduled time.
¶9 On March 11, this court stayed Father’s appeal from the
unsigned dependency order so the juvenile court could enter a final
judgment. This court granted Father 15 days from the entry of the juvenile
court’s signed order to file a new notice of appeal.
¶10 The juvenile court filed a signed dependency order on March
21. The court found by a preponderance of the evidence that Father’s failure
to appear at the pretrial conference was without good cause, and the
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children were dependent as to Father. Father’s failure to provide a stable
home and supervision, history of domestic violence, and status as a person
of interest in Mother’s disappearance supported the court’s decision.
¶11 Meanwhile, on March 25, the juvenile court held a status
hearing to consider Father’s motion to set aside the judgment. The parties
argued whether Father failed to appear at the conference on February 24
because of excusable neglect and if Father had a meritorious defense to the
dependency petition’s allegations. Father argued the juvenile case was
“fraudulent” because the criminal case had been dismissed. The court
found that Father lacked a meritorious defense and denied Father’s motion.
¶12 Also at the hearing, Father asked the court to appoint new
counsel because his lawyer did not inform him that he had the right to
appeal the dependency order and there had been a “breakup between client
communication.” The court responded, “[I]t wouldn’t have made any
difference in your lawyer to file it because there wasn’t any final order to
appeal.” On March 29, 2022, Father sent the court a letter titled “Motion for
Change of Coun[se]l” requesting that he be appointed new counsel.
Because Father did not copy all parties on the matter, the court declined to
consider it.
¶13 The court issued an order from the March 25 hearing on April
13. Father did not appeal from this order.
¶14 We have jurisdiction to review the dependency order under
A.R.S. §§ 8-235(A) and 12-120.21(A)(1). We do not, however, have
jurisdiction to review the court’s resolution of the motion to set aside
presented at the March 25 hearing.
DISCUSSION
¶15 Father argues that 1) the court erred by denying his motion to
vacate the entry of default during the March 25 hearing, and 2) the court
violated his due process rights when it did not appoint him new counsel
upon his request at the hearing.
¶16 This court lacks jurisdiction to consider Father’s claims.
“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.” In re Appeal in Maricopa County Juv. Action No. J-79149, 25 Ariz.
App. 78, 78 (1975). This court can only exercise the jurisdiction given to it
by statute. Francisco F. v. Ariz. Dep’t Econ. Sec., 228 Ariz. 379, 381, ¶ 6 (App.
2011).
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¶17 Arizona Revised Statutes Section 8-235 dictates this court’s
jurisdiction over appeals from juvenile court rulings. “Any aggrieved party
in any juvenile court proceeding under this title may appeal from a final
order of the juvenile court to the court of appeals in the manner provided
in the Arizona rules of procedure for the juvenile court.” A.R.S. § 8-235(A);
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.”) (repealed July 1,
2022); Ariz. R.P. Juv. Ct. 104(B) (“The notice of appeal . . . shall . . . designate
the final order or part thereof appealed from.”) (repealed July 1, 2022).
¶18 This court “only acquires jurisdiction over those matters
identified in a timely filed notice of appeal.” In re Marriage of Thorn, 235
Ariz. 216, 218, ¶ 5 (App. 2014). When an appellant “file[s] his notice of
appeal before the trial court decide[s] his . . . motion, and he [does] not file
another notice of appeal after the trial court issue[s] its decision,” the court
lacks jurisdiction to decide claims from the motion. Navajo Nation v.
MacDonald, 180 Ariz. 539, 547 (App. 1994).
¶19 On appeal, Father argues two issues over which we do not
have jurisdiction. First, Father argues that at the hearing, the court should
have evaluated Father’s defense to the dependency before ruling on the
motion. Second, Father argues that the court should have appointed Father
new counsel when it learned about the breakdown in communication
between Father and his attorney. But Father never appealed the order from
this hearing. Instead, Father appealed from the order adjudicating
dependency issued on March 21. Because Father did not identify the court’s
denial of his motion in his April 1 appeal, this court has no jurisdiction to
review Father’s arguments. See Thorn, 235 Ariz. at 216, ¶ 5; Navajo Nation,
180 Ariz. at 547.
¶20 Because Father timely appealed within 15 days of the order
adjudicating dependency, we have jurisdiction to review the matter under
A.R.S. §§ 8-235(A) and 12-120.21(A)(1). See In re Appeal in Yavapai County
Juv. Action No. J-8545, 140 Ariz. 10, 15 (1984) (“[A]n order declaring a child
or children dependent . . . is a final order subject to appeal by an aggrieved
party.”). This court reviews an order adjudicating a child dependent for
abuse of discretion. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 13
(App. 2016). This court will defer to the juvenile court’s findings unless no
reasonable evidence supports them. Id. “The juvenile court is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and make appropriate findings.” Christina G. v. Ariz. Dep’t of
Econ. Sec., 227 Ariz. 231, 234, ¶ 13 (App. 2011).
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¶21 A “[d]ependent child” is one “[i]n need of proper and
effective parental care and control and who has no parent . . . willing to
exercise or capable of exercising such care or control” or a child who is
adjudicated to be “[a] child whose home is unfit by reason of abuse, neglect,
cruelty or depravity by a parent, a guardian or any other person having
custody or care of the child.” A.R.S. § 8-201(15)(a)(i), (iii). The court must
find by a preponderance of the evidence that the allegations in the
dependency petition are true. A.R.S. § 8-844(C)(1).
¶22 There is sufficient evidence to support the court’s dependency
findings. Father does not challenge the juvenile court’s findings that the
children were dependent because Father failed to provide them a stable and
safe home, participated in multiple domestic violence incidents, and was a
person of interest in Mother’s disappearance. If an appellant does not
challenge a trial court’s findings on appeal, the appellant concedes the
accuracy of those findings. Britz v. Kinsvater, 87 Ariz. 385, 388 (1960).
¶23 Although Yuma County and Mother ultimately dismissed the
criminal charges and protective order against Father based on the January
21 incident, the remaining evidence supports the court’s order. To support
a dependency finding, domestic violence in the home need not be
continuous or actively occurring at the time of the dependency hearing so
long as there is a “substantiated and unresolved threat.” Shella H., 239 Ariz.
at 51, ¶ 16. Father is the subject of at least two other domestic violence
incidents in late 2020, and Father may have physically and sexually abused
another child. This evidence, coupled with the children’s health, Mother’s
mysterious disappearance, and Father’s inability to confirm his household
address, adequately supports the superior court’s dependency findings. See
A.R.S. § 8-201(15).
¶24 There is thus reasonable evidence in the record to support the
juvenile court’s conclusion that the children were dependent as to Father.
CONCLUSION
¶25 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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