Allegra G. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ALLEGRA G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, G.K., G.K., L.K., C.K., C.K., Appellees.
No. 1 CA-JV 21-0260
FILED 4-7-2022
Appeal from the Superior Court in Maricopa County
No. JD40644
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL
Allegra G., Phoenix
Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
ALLEGRA G. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Cynthia J. Bailey and Judge D. Steven Williams joined.
S W A N N, Judge:
¶1 Allegra G. (“Mother”), the mother of minor children G.K.,
G.K., L.K., C.K., and C.K. (collectively, “the Children”), appeals the juvenile
court’s dependency disposition order implementing a case plan of
severance and adoption.1 She contends that the disposition hearing was
void because it was untimely, and that she was deprived of constitutional
rights. We reject those arguments, and therefore affirm.2
FACTS AND PROCEDURAL HISTORY
¶2 In March 2021, the Department of Child Safety (“DCS”) took
custody of the Children after their sibling died and evidence came to light
that the Children had never received medical or dental care, had never been
enrolled in school, and were isolated from their extended family members.
DCS promptly filed a dependency petition alleging that Mother was unable
to properly and effectively parent the Children due to abuse, neglect, and
mental health concerns. At a June 22, 2021, hearing, which Mother did not
attend, the juvenile court found the allegations true and the Children
dependent as to Mother. Mother appealed the dependency adjudication,
and we affirmed in Allegra G. v. Department of Child Safety, 1 CA-JV 21-0221,
2021 WL 5830199 (Ariz. App. Dec. 9, 2021) (mem. decision).
¶3 Upon finding the Children dependent, the juvenile court set
a disposition hearing for July 30, 2021. Several hours before the disposition
hearing, Mother filed a “Notice” in which she argued, inter alia, that the
hearing violated A.R.S. § 8-844(E) because it was scheduled for more than
thirty days after the dependency adjudication hearing. Mother did not,
however, appear at the hearing. The court set the case plan as severance
1 No father is party to this appeal.
2 We deny as moot Mother’s motion for mistrial and disqualification
filed in this court on March 11, 2022, and her motion to dismiss filed on
March 22, 2022.
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ALLEGRA G. v. DCS et al.
Decision of the Court
and adoption, and ordered DCS to expedite a home-study referral for a
proposed out-of-state relative placement.
¶4 Mother appeals the disposition order. We have jurisdiction
under A.R.S. §§ 8-235 and 12-120.21. See Lindsey M. v. Ariz. Dep’t of Econ.
Sec., 212 Ariz. 43, 45–46, ¶¶ 8–9, 12 (App. 2006).
DISCUSSION
¶5 Mother raises several arguments on appeal. As an initial
matter, DCS contends that Mother has waived all arguments based on her
failure to provide record and legal citations as required by ARCAP 13(a)
and Ariz. R.P. Juv. Ct. (“Rule”) 106(A). In exercise of our discretion, we
consider Mother’s arguments on their merits. We do not, however, address
her arguments concerning the dependency adjudication, including her
arguments that the juvenile court lacked jurisdiction and that certain
dependency statutes are unconstitutional. Our review is limited to
Mother’s challenges to the disposition order.
¶6 We first address Mother’s contention that the disposition
order was void because the hearing was untimely. Section 8-844(E) directs
the juvenile court to hold the disposition hearing “not more than thirty days
after the date of the dependency adjudication hearing,” and Rule 56(B)
similarly provides that “[t]he disposition hearing shall be held within thirty
(30) days of the dependency adjudication.” Here, the disposition hearing
was held eight days outside the thirty-day deadline. We do not, however,
agree with Mother that the tardiness of the hearing rendered the order void.
¶7 Our decision in Joshua J. v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
417 (App. 2012), is instructive. In Joshua J., we held that though § 8-842 and
Rule 55(B) provide that an initial dependency hearing “shall” be held
within a prescribed period after the petition is filed, non-compliance with
that deadline is not fatal to the proceedings. 230 Ariz. at 422–23, ¶¶ 18–19.
We explained that “shall” may be given a directory rather than a mandatory
meaning when the legislature’s purpose would not be served by a rule that
noncompliance invalidates the proceedings. Id. at 421, ¶ 11. We construed
§ 8-842 and Rule 55’s deadline as directory in view of the legislature’s
failure to identify any consequence for non-compliance, and the potential
harm to children if hearing delays alone rendered dependency
adjudications void. Id. at 422–23, ¶¶ 18–19. We held that to obtain relief
based on a violation of the deadline, a parent must demonstrate prejudice—
i.e., that the outcome of the proceeding would have been different absent
the delay. Id. at 424, ¶¶ 24–25.
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ALLEGRA G. v. DCS et al.
Decision of the Court
¶8 Here, as in Joshua J., neither § 8-844 nor Rule 56 identify any
consequence for a failure to hold the disposition hearing within the thirty-
day period. Further, to find the proceedings void based on a tardy hearing
alone would expose some children to harm. Accordingly, we hold that the
thirty-day deadline set forth by the statute and rule is directory. And here,
Mother is not entitled to relief because she has demonstrated no prejudice
from the violation of the deadline.
¶9 We next address Mother’s contention that A.R.S. § 8-845 “is
unconstitutional (‘breathtakingly broad’) as applied” because her parental
rights were not prioritized. The statute authorizes the court to place
children “in accordance with [their] best interests,” considering their
“health and safety . . . as a paramount concern.” A.R.S. § 8-845(A), (B). The
statute properly reflects the court’s obligation to “consider the best interests
of the child in every decision.” See Alexander M. v. Abrams, 235 Ariz. 104,
107, ¶ 15 (2014). Further, the statute does not, as Mother suggests, ignore
her rights—it specifically provides that the court must consider “[t]he
services that have been offered to reunite the family,” and it states that “the
court, insofar as possible, shall seek to reunite the family.” A.R.S. § 8-
845(B)(2), (C).
¶10 Here, Mother knowingly failed to attend the disposition
hearing, instead filing in advance a “Notice” for the court’s review.
Contrary to her contention, she was afforded due process—she simply did
not fully avail herself of it. See Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App.
2016) (recognizing that parents whose custodial rights are at issue are
entitled to notice and an opportunity to be heard at a meaningful time in a
meaningful manner); Jessicah C. v. Dept’ of Child Safety, 248 Ariz. 203, 204,
207, ¶¶ 1, 18–21 (App. 2020) (holding that parent waived right to present
evidence by explicitly agreeing to resolve on oral argument alone DCS’s
motion to change physical custody of the dependent child); Rule 56(D)
(providing that court may consider all relevant evidence at disposition
hearing, including the parents’ oral or written reports).
¶11 The first seven minutes of the disposition hearing were not
recorded. Though we informed Mother that she could seek to reconstruct
the record under ARCAP 11, she did not do so. Nor does she challenge the
evidence that she neglected the Children’s medical and educational needs
their entire lives, isolated them, and showed signs of a mental health issues.
And though Mother contends that she fully participated in visitation, which
she asserts was the only service offered, DCS’s counsel informed the court
at the disposition hearing that Mother had “recently declined to participate
since the visitations switched to clinically supervised.” Counsel further
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ALLEGRA G. v. DCS et al.
Decision of the Court
stated that DCS would continue to offer clinically supervised visitation to
Mother even under the new case plan, and was “asking her to engage in a
psychological evaluation.” See A.R.S. § 8-845(D) (permitting reasonable
reunification efforts to continue concurrent with adoption efforts). On this
record, we detect no error in the superior court’s ruling.
CONCLUSION
¶12 We affirm the disposition order for the reasons set forth
above.
AMY M. WOOD • Clerk of the Court
FILED: AA
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