Lindsey M. v. Rizona Department of Economic Security

127 P.3d 59, 212 Ariz. 43, 470 Ariz. Adv. Rep. 19, 2006 Ariz. App. LEXIS 7
CourtCourt of Appeals of Arizona
DecidedJanuary 25, 2006
Docket2 CA-JV 2005-0040
StatusPublished
Cited by7 cases

This text of 127 P.3d 59 (Lindsey M. v. Rizona Department of Economic Security) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindsey M. v. Rizona Department of Economic Security, 127 P.3d 59, 212 Ariz. 43, 470 Ariz. Adv. Rep. 19, 2006 Ariz. App. LEXIS 7 (Ark. Ct. App. 2006).

Opinion

OPINION

ECKERSTROM, Judge.

¶ 1 Appellant Lindsey M. is the mother of Jose E., born in September 2001, and Kenneth E., born in April 2004. Lindsey is also the mother of Shanell E., who was born in May 2003. Shanell was nineteen months old when she died in December 2004 from nonaccidental injuries she apparently sustained while in her parents’ care. The circumstances of her death led the Arizona Department of Economic Security to take Jose and Kenneth into protective custody and place them in foster care. In March 2005, they were adjudicated dependent as to Lindsey, who pled no contest to an amended petition alleging that she was unable to parent the children because she was incarcerated. 1

¶ 2 At the dependency adjudication hearing held on March 14, the juvenile court scheduled for April 11 the disposition hearing contemplated by A.R.S. § 8-845 and Rule 56, Ariz. R.P. Juv. Ct., 17B A.R.S. On April 11 and again on May 3, the court continued the disposition hearing, each time because of problems in securing the attendance of the parents, both of whom were incarcerated. When the court held the hearing on May 17, Lindsey was not present because her attorney apparently had failed to arrange for Lindsey to be transported to court for the disposition hearing, either on May 3 or May 17.

¶ 3 The juvenile court expressed concern that the disposition hearing had been postponed twice, that “the delay has been way beyond the bounds of acceptability in a dependency case,” and that Lindsey’s attorney was responsible for her absence from the hearing. Noting that the children’s interests are paramount in a dependency proceeding and that “they need a disposition order,” the court proceeded with the hearing over the objection of Lindsey’s attorney. The court heard testimony from the case manager, approved the parents’ case plans, and ordered that the children remain in their foster placement.

¶ 4 On appeal, Lindsey claims the juvenile court erred in proceeding without her at the disposition hearing, contending her absence was involuntary. Before we can reach that issue, however, we first must address the department’s contention that we lack jurisdiction to consider the appeal because a dependency disposition order is not a final, *45 appealable order and because Lindsey is not an aggrieved party. See In re Maricopa County Juvenile Action No. J-79149, 25 Ariz.App. 78, 78, 541 P.2d 404, 404 (1975) (appellate court must preliminarily ascertain that it has jurisdiction before reaching merits of juvenile appeal).

¶ 5 Section 8-235(A), A.R.S., and Rule 88(A), Ariz. R.P. Juv. Ct., 17B A.R.S., provide that an “aggrieved party” may appeal “from a final order of the juvenile court.” To be final and procedurally appealable, the order must be in writing, signed by the court, and filed with the clerk. See Ariz. R.P. Juv. Ct. 89(A), 17B A.R.S. The dependency disposition order here satisfies those criteria.

¶ 6 Our supreme court’s only pronouncement on what constitutes a final, substantively appealable order in a dependency proceeding is in In re Yavapai County Juvenile Action No. J-8545, 140 Ariz. 10, 13-14, 680 P.2d 146, 149-50 (1984). The court held that an order dismissing a dependency proceeding was a final order. The court noted that, because juvenile proceedings in general, and dependency proceedings in particular, are unique, “we are not bound by the definition employed [in earlier decisions] in determining if an order is final for the purposes of exercising general appellate jurisdiction.” Id. at 13 n. 1, 680 P.2d at 149 n. 1. Moreover, the court noted, “a very narrow, technical conception of what constitutes a final order ... [is] inappropriate in cases involving the important and fundamental right to raise one’s children.” Id. at 14, 680 P.2d at 150.

¶ 7 Examples of other orders in dependency proceedings that have either been held to be or recognized as final and appealable are “orders declaring children dependent and orders reaffirming findings that children are dependent,” id.; “an order issued pursuant to the juvenile court’s periodic review of a determination of dependency or of a custodial arrangement,” id.; an order terminating a parent’s visitation rights, In re Maricopa County Juvenile Action No. JD-5312, 178 Ariz. 372, 374, 873 P.2d 710, 712 (App.1994), or substantially limiting those rights, In re Maricopa County Juvenile Action No. JD-500116, 160 Ariz. 538, 542-43, 774 P.2d 842, 846-47 (App.1989); and an order granting a motion pursuant to Rule 64(A), Ariz. R.P. Juv. Ct., 17B A.R.S., to terminate a parent’s rights to a dependent child. E.g., Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, ¶¶ 12-13, 118 P.3d 37, 40 (App.2005). Conversely, orders found to be interlocutory and not appealable in dependency actions include an order moving a child from one local foster home to another, from which the first foster parent had attempted to appeal, In re Maricopa County Juvenile Action No. J-57445, 143 Ariz. 88, 92, 691 P.2d 1116, 1120 (App. 1984), and an order entered after a permanency hearing at which concurrent plans of family reunification and severance were approved. Rita J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 512, ¶ 8, 1 P.3d 155, 158 (App.2000).

¶ 8 We conclude that a dependency disposition order entered pursuant to Rule 56(E), Ariz. R.P. Juv. Ct., following an adjudication of dependency pursuant to Rule 55, Ariz. R.P. Juv. Ct., 17B A.R.S., is a final, appeal-able order. Our conclusion is informed by the supreme court’s comments in Yavapai County No. J-854.5, recognizing that, in a dependency proceeding, there typically will be more than one “final” order subject to appeal by an aggrieved party. 140 Ariz. at 14, 680 P.2d at 150. In dicta, the court implied that the disposition order in which custody of a dependent child is first formally determined is one such order, stating:

A finding of dependency disposes of the issue of whether a child is dependent and simultaneously triggers a custody proceeding. It is, therefore, only the first step in an effort to provide for minor children who are not being adequately eared for.

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Cite This Page — Counsel Stack

Bluebook (online)
127 P.3d 59, 212 Ariz. 43, 470 Ariz. Adv. Rep. 19, 2006 Ariz. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindsey-m-v-rizona-department-of-economic-security-arizctapp-2006.