Mysti B. v. Ades

NOTICE: NOT FOR PUBLICATION.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
MYSTI B., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, G.M., N.M.,
Appellees.
No. 1 CA-JV 13-0311
FILED 4-29-2014
Appeal from the Superior Court in Yavapai County
No. P1300JD201300007
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellees
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
MYSTI B. v. ADES, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Mysti B. (“Mother”) appeals from the juvenile court’s order
granting ADES discretion to suspend visitation with her two minor
children. Mother argues the evidence does not support the court’s ruling.
For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On May 20, 2013, Mother’s children were found dependent
due to neglect stemming from Mother’s substance abuse issues, domestic
violence between Mother and her partner, Mother’s mental health issues,
and Mother’s failure to protect the children.1 At a report and review
hearing on July 23, 2013, the juvenile court granted ADES discretion to
suspend Mother’s visitation. In its order, the court directed “that
discretion shall be utilized if the mother misses any more UAs [urinalysis
tests]. If the discretion is exercised to suspend those visits, then those
visits shall not be restarted until it is therapeutically recommended.”
¶3 Mother missed a UA on August 22, 2013, and the next day
ADES exercised its discretion and suspended Mother’s visitation with the
children. On September 5, 2013, Mother filed a motion requesting the
court reconsider its July 23 minute entry. She argued that visitation could
only be restricted if the court found visitation was not in the children’s
best interests. In addition, Mother contended that because there was no
evidence that the visits were harmful to the children, visitation could not
be suspended.
1 Initially, Mother’s three minor children were removed and found
dependent; however, the oldest child reached the age of 18 and was
dismissed from this case. This appeal only addresses the dependency of
Mother’s remaining minor children G.M., age 17, and N.M., age 11.
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MYSTI B. v. ADES, et al.
Decision of the Court
¶4 At a report and review hearing on October 8, 2013, the
juvenile court denied Mother’s motion to reconsider. Because visitation
had been suspended at that point, the court confirmed that ADES was
granted discretion to reinstate visits between the children and Mother
upon therapeutic recommendation. Mother filed a notice of appeal on
October 14, 2013, appealing the court’s “final order granting [ADES]
discretion to suspend the Mother’s visitation with the . . . children.”
Because the juvenile court’s minute entry filed October 8, 2013 denying
Mother’s motion to reconsider was not signed, as required by Arizona
Rule of Juvenile Court Procedure 104(a), this court suspended Mother’s
appeal. The appeal was dismissed when a signed order was not filed in
the juvenile court within the time provided.
¶5 On December 3, 2013, the juvenile court filed a signed order
confirming that “ADES has discretion to suspend the Mother’s visitation
with the Children due [to] the Mother’s failure to provide a urinalysis test
subsequent to the Court’s order of July 23, 2013,”and confirming its denial
of Mother’s motion for reconsideration. Mother then filed a second notice
of appeal on December 4, 2013.
DISCUSSION
I. Jurisdiction
¶6 ADES argues Mother should have appealed the July 23
minute entry order originally granting ADES the authority to suspend
Mother’s visitation. Because Mother only appealed the juvenile court’s
October 8 order denying her motion for reconsideration, ADES contends
that Mother’s notice of appeal is untimely and, therefore, this court lacks
jurisdiction to review her claims regarding the July 23 order.
¶7 “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.” Maricopa Cnty. Juv. Action No. J-79149,
25 Ariz. App. 78, 78, 541 P.2d 404, 404 (1975). Rule 104(a) requires that a
final order “be in writing and signed by the judge before an appeal can be
taken.” A final order is an “order that disposes of an issue such that it
conclusively defines the rights and/or duties of a party in a dependency
proceeding.” Yavapai Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 15, 680
P.2d 146, 151 (1984). We have held that orders terminating a parent’s
visitation rights, or substantially limiting those rights, are final, appealable
orders. See Lindsey M. v. Ariz. Dep’t of Econ. Sec., 212 Ariz. 43, 45, ¶ 7, 127
P.3d 59, 61 (App. 2006). The focus is on the practical effect of the court’s
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MYSTI B. v. ADES, et al.
Decision of the Court
order on a party’s right to visitation. Maricopa Cnty. Juv. Action No. JD-
5312, 178 Ariz. 372, 374, 873 P.2d 710, 712 (App. 1994).
¶8 Mother’s appeal was timely. The July 23 order did not
suspend Mother’s visitation; rather, it granted ADES discretion to
suspend visitation if Mother continued to miss her UAs. As a result, the
July 23 order was not a final appealable order that conclusively defined
Mother’s visitation rights. J-8545, 140 Ariz. at 15, 680 P.2d at 151. Indeed,
if Mother had submitted all of her UAs following the July 23 order, it
appears likely that there would have been no suspension of her visitation
rights. The juvenile court’s order only became effective when Mother
missed her UA on August 22 and ADES exercised its discretion to
suspend Mother’s visitation. Once the court effectively suspended
Mother’s visitation, Mother filed her motion for reconsideration
challenging the juvenile court’s order.
¶9 As a result, the October 8, 2013 minute entry denying
Mother’s motion for reconsideration is the first written order from the
juvenile court substantially limiting Mother’s visitation rights. See JD-
5312, 178 Ariz. at 374, 873 P.2d at 712 (holding that a court’s order
terminating visitation is a final order because it conclusively defines a
parent’s rights regarding visitation). However, because the minute entry
was not signed, we concluded we did not have jurisdiction and dismissed
Mother’s appeal. It was not until (1) the juvenile court filed a signed order
confirming ADES’ decision to suspend Mother’s visitation, and (2) ADES
actually suspended Mother’s visitation rights that Mother was an
aggrieved party with a final order from which to appeal. See id.¶10 Accordingly, Mother’s second notice of appeal was timely
filed, and we have jurisdiction to consider whether sufficient evidence
supported the court’s action. See In re Eric. L., 189 Ariz. 482, 484, 943 P.2d
842, 844 (App. 1997) (stating that until a final order has been entered no
appeal may be taken, and “when the notice of appeal is filed, it
encompasses all previous orders entered by the juvenile court”).
II. Suspension of Visitation
¶11 Mother argues the juvenile court abused its discretion in
suspending her visitation because there is no evidence in the record
showing that her visits were endangering the children. She claims the
juvenile court suspended the visits in an improper attempt to induce her
to comply with the case plan and submit random UAs. Mother also
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MYSTI B. v. ADES, et al.
Decision of the Court
asserts that the juvenile court failed to make any finding that Mother’s
visitation was dangerous or unsafe for the children.
¶12 A parent whose children have been found dependent “still
has a fundamental right to associate with her children” through visitation.
JD-5312, 178 at 374, 873 P.2d at 712. ADES is required by statute to “make
diligent efforts to preserve the family by providing all rehabilitative
services reasonably necessary to rectify the conditions that led to the
child’s removal,” including visitation. Michael M. v. Ariz. Dep’t of Econ.
Sec., 202 Ariz. 198, 200, ¶ 9, 42 P.3d 1163, 1165 (App. 2002); see also A.R.S.
§§ 8-824(G), -825(C), -846. “Although a parent should be denied the right
of visitation only under extraordinary circumstances,” the trial court has
broad discretion in its determination of what is best for the children. JD-
5312, 178 Ariz. at 375, 873 P.2d at 713. “We view the facts in the light most
favorable to sustaining the juvenile court’s findings, and if there is any
evidence to support the order we must affirm it.” Id. at 376, 873 P.2d at
714.
¶13 In suspending Mother’s visitation, the juvenile court did not
make any express findings regarding whether Mother’s visitation
endangered the children. Nonetheless, we must assume the juvenile court
considered all relevant factors that were necessary to suspend Mother’s
visitation. Roberto F. v. Ariz. Dept. of Econ. Sec., 232 Ariz. 45, 52, ¶ 34, 301
P.3d 211, 218 (App. 2013); see Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13, 29
P.3d 870, 873 (App. 2001) (stating that when the trial court does not make
specific findings of fact, “we ‘must assume that the trial court found every
fact necessary to support its [ruling] and must affirm if any reasonable
construction of the evidence justifies the decision’”) (internal citations
omitted). Thus, we review the record to determine if there was reasonable
evidence supporting the juvenile court’s implicit determination that
Mother’s visitation was dangerous or unsafe for the children, and
suspending visitation was in the best interests of the children. Roberto F.,
232 Ariz. at 52, ¶ 3, 301 P.3d at 218; see Twin City Fire Ins. Co. v. Burke, 204
Ariz. 251, 254, ¶ 10, 63 P.3d 282, 285 (2003) (“We defer to the judge with
respect to any factual findings explicitly or implicitly made, affirming
them so long as they are supported by reasonable evidence.”).
¶14 In our review of the record we find sufficient evidence to
support the juvenile court’s decision to grant ADES discretion to suspend
Mother’s visitation. See JD-5312, 178 Ariz. at 376, 873 P.2d at 714(requiring a showing that visitation adversely affected the children and
that termination of visitation is in their best interests). For the two months
prior to the July 23 report and review hearing, Mother was not submitting
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MYSTI B. v. ADES, et al.
Decision of the Court
clean UAs or participating in any other services. She did not have stable
housing, and, during visitation, she reportedly spoke negatively to the
children about the children’s maternal grandmother and CPS’s
involvement in the case. Testimony from the report and review hearing
does not indicate that suspending visitation was a punitive measure.
Rather, CPS recommended a temporary suspension of visits to allow
Mother time to get on her feet and comply with the case plan.
Additionally, CPS testified that Mother’s non-participation in services was
difficult for the children because the children understood that her non-
participation had a negative impact on the case plan of family
reunification.
¶15 After Mother’s visitation was actually suspended in August
and Mother asked the court to reconsider its decision, the court further
explained its reasoning. In denying Mother’s motion to reconsider it
found that Mother’s continued substance abuse and her continued
dishonesty regarding her use of substances was detrimental to the
children’s emotional health. This finding is supported by Mother’s
admission that she was testing positive for THC and methamphetamine,
and that she was missing her UAs. In addition, the Court Appointed
Special Advocate reported that Mother’s visits were confusing and anxiety
provoking for the children, and that her visits were causing the children to
become frustrated due to Mother’s continued non-compliance with
services.
CONCLUSION
¶16 For the foregoing reasons we affirm the juvenile court’s
order granting ADES discretion to suspend Mother’s visitation.
:MJT
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