Alicia H. v. Ades ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ALICIA H., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, S.H., C.H., NOT
NAMED H., Appellees.
No. 1 CA-JV 13-0327
FILED 5-13-2014
Appeal from the Superior Court in Maricopa County
No. JD17680
The Honorable Linda H. Miles, Judge
APPEAL DISMISSED
COUNSEL
John L. Popilek P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee
ALICIA H. v. ADES et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
B R O W N, Judge:
¶1 Alicia H. (Mother) appeals the juvenile court’s order
denying her motion requesting that a parent aide stop interfering with her
visitation. For the following reasons, we dismiss the appeal for lack of
jurisdiction.
¶2 In April 2013, the Arizona Department of Economic Security
(ADES) filed a dependency petition alleging that Mother’s child, S.H., and
two other children were being neglected as a result of Mother’s
incarceration and untreated mental illness. In September, the juvenile
court entered a default dependency order. 1 The court found that services
were necessary and ordered, among other services, that Mother should
have visitation “one time per week with [S.H.] with a parent aide.”
¶3 Several weeks later, Mother filed a motion requesting that
the juvenile court enter an order prohibiting ADES and the parent aide
from “interfer[ing]” with Mother’s visitation with S.H. “by preventing
[Mother] from accompanying [S.H.] into the restroom during her visits
with the child.” Mother explained that she assists S.H. with washing her
hands, brushing teeth, and “personal hygiene, as may be necessary” after
using the restroom. In response, ADES explained that S.H. had disclosed
that Mother’s presence in the restroom makes her “uncomfortable.”
According to ADES, S.H. informed her foster mother that Mother has
taken pictures of her unclothed body and made unwelcome comments
about her body while in the restroom. ADES also noted that S.H. is seven
years old and, although autistic, “is more than capable of tending to her
needs while using the restroom during the visits without Mother’s
interference.”
1 Mother appealed the order, which this court recently affirmed in
Alicia H. v. Arizona Department of Economic Security et al., 1 CA-JV 13-0262
(Ariz. App. Mar. 18, 2014) (mem. decision).
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ALICIA H. v. ADES et al.
Decision of the Court
¶4 At a report and review hearing held November 25, 2013, the
juvenile court heard argument on, among other things, Mother’s motion.
ADES explained, and Mother did not dispute, that the public restroom
available for S.H.’s use during the scheduled visitation is a single
occupant restroom and, as such, there is no safety concern necessitating
that Mother or any other person accompany S.H. ADES further noted that
S.H. manages all of her restroom needs at school and at the foster home
without any assistance. S.H.’s guardian ad litem informed the court that
he had spoken with S.H. and she “is not comfortable” having Mother
accompany her into the restroom. In response, Mother, through counsel,
denied taking any pictures of S.H. in the restroom and explained that she
would like to be present in the restroom in the event S.H. should “need a
little assistance.” The juvenile court summarily denied Mother’s motion in
a signed minute entry and Mother then filed a notice of appeal.
¶5 As a threshold issue, we must determine whether we have
jurisdiction over this appeal. Maricopa County Juvenile Action No. J-79149,
25 Ariz.App. 78, 78, 541 P.2d 404, 404 (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.”).
Pursuant to Arizona Revised Statutes (A.R.S.) section 8-235 and Arizona
Rule of the Juvenile Court 103(A), “[a]ny aggrieved party” may “appeal
from a final order of the juvenile court[.]”
¶6 Citing Maricopa County Juvenile Action No. JD-5312, 178 Ariz.
372, 374, 873 P.2d 710, 712 (App. 1994), ADES suggests that we have
jurisdiction here because the juvenile court’s November 25, 2013 minute
entry is a final, appealable order. In JD-5312, this court concluded that a
“juvenile court’s order terminating visitation is a final order because it
conclusively defines [a parent’s] rights regarding visitation of her
children: she is not to have any,” and therefore such an order is subject to
appellate review. Id. Unlike JD-5312, in this case, the juvenile court has
not terminated Mother’s visitation with S.H. Rather, the court has upheld
the parent aide’s implicit determination S.H. needs to be able to attend to
her restroom needs independently. Because the visitation protocol does
not deprive Mother “of her right of association,” she is not entitled to
appeal such an order. Id.
¶7 Our conclusion does not run afoul of our supreme court’s
decision in Yavapai County Juv. Action No. J-8545, 140 Ariz. 10, 14, 680 P.2d
146, 150 (1984), in which the court noted the importance of avoiding a
technical reading of what constitutes an appealable order in cases
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ALICIA H. v. ADES et al.
Decision of the Court
“involving the important and fundamental right to raise one’s children”
and held as follows:
A parent denied and redenied control over his or her
children must have the right to appeal the initial and
subsequent denials. This does not mean that he or she shall
be able to challenge a custodial arrangement every week or
every month. What it means is that an aggrieved party may
appeal an order issued pursuant to the juvenile court’s
periodic review of a determination of dependency or of a
custodial arrangement[.]
The order at issue here, while made during a report and review hearing,
does not involve a denial of control over one’s children or a determination
of dependency or a custodial arrangement; nor is the order similar to
other cases in which we have found varying forms of dependency orders
appealable. See, e.g., Lindsey M. v. Ariz. Dep't of Econ. Sec., 212 Ariz. 43, 45-
46, ¶¶ 7-9, 127 P.3d 59, 61-62 (App. 2006). Additionally, in our discretion
we decline to accept special action jurisdiction. Lloyd v. State Farm Mut.
Auto Ins. Co., 189 Ariz. 369, 375, 943 P.2d 729, 735 (App. 1996) (noting this
court may, in its discretion, accept special action jurisdiction when we do
not have appellate jurisdiction to review an issue).
¶8 For the foregoing reasons, we dismiss Mother’s appeal.
:MJT
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