David F., Michelle F. v. DCS, Ariz. Ct. App. (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NOTICE: NOT FOR PUBLICATION.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
DAVID F., MICHELLE F., Appellants,

v.
DEPARTMENT OF CHILD SAFETY, 1 JAY A., THERESA C., E.B.,
Appellees.
No. 1 CA-JV 13-0308
FILED 07-24-2014
Appeal from the Superior Court in Maricopa County
No. JD508247
The Honorable Peter A. Thompson, Judge
AFFIRMED
COUNSEL
Gregan & Associates, Mesa
By Lawton Connelly
Counsel for Appellants
Law Office of Janet S. Story, Scottsdale
By Janet S. Story
Appellees Jay A. and Theresa C.
Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014)
(enacted), the Department of Child Safety is substituted for the Arizona
Department of Economic Security in this matter. See ARCAP 27.
1
DAVID F., MICHELLE F. v. DCS, et al.

Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould
joined.
P O R T L E Y, Judge:
1
David and Michelle F. (Appellants) appeal an order
affirming the placement of their dependent great-grandson (E.B.) with
foster parents, Jay A. and Theresa C. (Foster Parents). For the following
reasons, we affirm.
FACTS 2 AND PROCEDURAL HISTORY
2
E.B., a two-and-a-half year old child, was placed with Foster
Parents when he was three days old by Child Protective Services within
the Arizona Department of Economic Security 3 (ADES), and has bonded
with Foster Parents. Appellants filed a motion to intervene in January
2013 in an attempt to have E.B. placed with them. Although the court
allowed them to intervene, the court denied Appellants' request to become
the childs placement. 4
3
Subsequently, in April 2013, E.B.s parents had their parental
rights terminated. Later that month, Appellants again moved to have the
child placed in their care. ADES reversed its earlier position and
supported placing E.B. with Appellants, who resided in Montana and had
adopted one of E.B.s two siblings. The juvenile court, however, denied
Because Appellants failed to cite the record in their opening brief in
violation of ARCAP 13(a)(4), we rely on our review of the record and the
citations in the answering brief. We view the evidence in the light most
favorable to sustaining the juvenile courts ruling. Willie G. v. Ariz. Dept
of Econ. Sec., 211 Ariz. 231, 235, 21, 119 P.3d 1034, 1038 (App. 2005).
3 The Department of Child Safety (DCS) has replaced ADES. Because
this case preceded the creation of DCS, we will refer to the agency as
ADES.
4 ADES has known since November 2011 that Appellants wanted to be
considered as a placement for E.B.
2

the request ruling that the best interests of the child favored keeping
him with Foster Parents. This appeal followed. 5
DISCUSSION
Denial of Placement with Appellants
4
Appellants argue that the juvenile court abused its discretion
by denying their request to have E.B. placed with them. They contend
that: the court did not have good cause for its order; the order was
contrary to the best interest of the child; and the order was contrary to
Arizonas preference to place children with relatives. We disagree.
5
We review child placement orders for an abuse of discretion.
Antonio P. v. Ariz. Dept of Econ. Sec., 218 Ariz. 402, 404, 8, 187 P.3d 1115,
1117 (App. 2008). The juvenile court has substantial discretion when
placing dependent children because the courts primary consideration in
dependency cases is the best interest of the child. Id. We will not
reweigh the evidence because the court, as trier of fact, is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and make appropriate findings. Jesus M. v. Ariz. Dept of Econ.
Sec., 203 Ariz. 278, 280, 4, 53 P.3d 203, 205 (App. 2002). Rather, we accept
the courts findings of fact unless no reasonable evidence supports it. Id.
6
In ruling on the placement motion, the juvenile court found
that E.B. had bonded with Foster Parents. The court was also concerned
that E.B., who had significant special needs, 6 might not have access to
needed services if placed with Appellants in Montana, and moving E.B.
based on tenuous information presented . . . would be irresponsible at
Appellants filed a timely notice of appeal, but the juvenile court struck
the notice for failing to include language required by Arizona Rule of
Procedure for the Juvenile Court (Rule) 104(B). After our intervention,
the court granted Appellants motion to extend time to file amended
notice of appeal nunc pro tunc.
6 E.B. suffers from cerebral palsy, dysphasia, gastroesophageal reflux,
disorder of metabolism, congenital ptosis, sensory issues, and behavioral
changes. He has regular physical therapy, occupational therapy, and
feeding therapy from specialists. He wears a protective helmet, and is fed
through a gastrostomy tube. He also sees a pediatric neurologist,
pediatric gastroenterologist, pediatric surgeon, pediatric ophthalmologist,
metabolic specialist, and pediatrician for developmental evaluation.
5

best. Consequently, the court ruled that it was in E.B.s best interest to
remain with Foster Parents.
7
The record supports the ruling of the juvenile court. First,
although Appellants wanted to care for E.B., their Montana community 7
had no pediatricians, and the nearest pediatric specialty clinic was some
fifty miles away. Although specialists were available at that clinic when
flown in from Washington, E.B.s pediatrician expressed concern for the
care of her patient if medical and therapeutic care was not more readily
available. The local community had a hospital, but it functioned as an
emergency room and patients were taken by air ambulance for specialized
treatment. Moreover, there was no evidence that Appellants could ensure
that E.B. could continue to have the approximately twenty-two monthly
appointments he had in order to meet his medical and emotional needs.
8
Second, there was no evidence to assure the juvenile court
that E.B. would be seen timely by all necessary medical and related
providers in Montana. E.B.s pediatrician and physical therapist testified,
and explained their concerns that, if there were any delays in service, the
childs progress would be set back and medical complications could
result. In fact, the childs pediatrician opined that it would be in E.B.s
best interest medically to remain in Phoenix.
9
Third, Dr. Aldolph Silberman, psychologist, expressed
concern with E.B. overreacting in a new environment and developing
reactive attachment disorder, which could affect future relationships. The
testimony was similar to the pediatricians testimony expressing
concern about the childs sensory disorder and adjusting to new
caregivers and providers.
10
Fourth, although the report from the adoption specialist was
an exhibit and suggested that E.B. be placed with Appellants, the court
also had other evidence to consider. In addition to testimony from the
pediatrician and physical therapist, the court had testimony from Dr.
Silberman, who recommended that E.B. stay with Foster Parents, and
Although Appellants argue that the evidence shows that they decided to
permanently reside in Arizona, the great-grandmother testified that if
they were granted custody, they would return to Montana. Moreover,
their testimony focused on securing medical treatment for E.B. in
Montana. Because we will not reweigh the evidence, there is substantial
support in the record for the juvenile courts finding.
7

disagreed that E.B. could easily bond with Appellants merely because he
had bonded with Foster Parents. The court had to resolve the evidentiary
conflicts, did so, and we will not interfere with that ruling because there is
evidence to support it. See Jesus M., 203 Ariz. at 282, 12, 53 P.3d at 207.
11
Finally, the court considered E.B.s best interests. Although
he had a biological sister living with Appellants, the ruling considered all
relevant factors, including the interaction and interrelationship of the
child with the childs potential placement, the childs siblings and any
other person who may significantly affect the childs best interest. The
court, however, had to determine the weight to be given to the factors,
and we will not reweigh the evidence. See id. at 280, 4, 53 P.3d at 205.
12
Appellants also argue that Arizona Revised Statutes
(A.R.S.) section 8-514(B) 8 indicates a preference of placing dependent
children with extended families before foster parents.
Although
placement preference with a grandparent or other relative is one factor in
the best interest of the child analysis, the statute is not mandatory, and
does not require the exclusion of foster parents who are bonded with a
child. See Antonio P., 218 Ariz. at 403-05, 1, 12, 187 P.3d at 1116-18
(We conclude that the preferences for placement contained in [A.R.S
8-514(B)] do not mandate placing a child with a person with an
acceptable higher preference if the juvenile court finds it in the childs best
interest to be placed with someone with a lower preference.). Because
the court has to consider what is in a childs best interest, i.e., the needs
of the child, the childs best interest trumps any placement preference. 9
See id. at 405, 10, 187 P.3d at 1118.
13
Here, the juvenile court held a hearing, considered all the
evidence presented and made its ruling. There is substantial evidence in
the record supporting the denial of moving E.B. to Appellants.
Accordingly, we find no abuse of discretion.
We cite to the current version of the applicable statutes absent changes

material to this decision.
9 Although ADES has a policy to place dependent children with relatives
when appropriate, the policy does not trump statute and case law after
consideration of all relevant factors to determine a childs best interest.
8

Motions to Intervene
14
Appellants also contend that the juvenile court erred by
denying their motion to intervene in June 2012. We will not address the
ruling. The order denying their motion to intervene was a final,
appealable order. See Bechtel v. Rose, 150 Ariz. 68, 71, 722 P.2d 236, 239
(1986). Because they did not timely file an appeal from that order, they
cannot now appeal the issue. See Ariz. R. Juv. P. 104(A) (A notice of
appeal shall be filed . . . no later than 15 days after the final order is filed
with the clerk.); see also Wendling v. Sw. Sav. & Loan Assn, 143 Ariz. 599,
601, 694 P.2d 1213, 1215 (App. 1984) (This court lacks jurisdiction to
review matters not contained in the Notice of Appeal.).
15
Similarly, we will not consider Appellants challenge to the
ruling granting Foster Parents motion to intervene. Given our resolution
of the placement issue, the challenge to the ruling granting Foster Parents
motion to intervene is moot.
Attorneys Fees on Appeal
16
Appellants and Foster Parents each request attorneys fees
and costs pursuant to A.R.S. 25-324. We deny Appellants request
because they did not prevail on appeal. We also deny the request by
Foster Parents because there is no information in the record concerning
the parties relative financial resources. See A.R.S. 25-324.
CONCLUSION
17
For the foregoing reasons, we affirm.
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NOTICE: NOT FOR PUBLICATION.

ARIZONA COURT OF APPEALS

DAVID F., MICHELLE F., Appellants,

DAVID F., MICHELLE F. v. DCS, et al.

DAVID F., MICHELLE F. v. DCS, et al.

DAVID F., MICHELLE F. v. DCS, et al.

DAVID F., MICHELLE F. v. DCS, et al.

We cite to the current version of the applicable statutes absent changes

DAVID F., MICHELLE F. v. DCS, et al.

For the foregoing reasons, we affirm.

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