Appeal in Yavapai County Juvenile Action No. J-8545, Matter of

• Decision Date: 27 March 1984
• Docket Number: J-8545,No. 17328-PR,17328-PR
• Citation: 680 P.2d 146,140 Ariz. 10
• Parties: In the Matter of the APPEAL IN YAVAPAI COUNTY JUVENILE ACTION NO.
• Court: Arizona Supreme Court

Page 146

680 P.2d 146

140 Ariz. 10

In the Matter of the APPEAL IN YAVAPAI COUNTY JUVENILE ACTION NO. J-8545.

No. 17328-PR.

Supreme Court of Arizona,

In Banc.

March 27, 1984.

Lewis & Morales by M. Wayne Lewis, Chandler, for appellants.

H.K. Wilhelmsen, Prescott, for appellee.

GORDON, Vice Chief Justice:

The preliminary issue before this Court is whether an order of the juvenile court dismissing a dependency proceeding is a final and appealable order within the meaning of Ariz.R.P.Juv.Ct. 24(a). We find that it is. The Court of Appeals' order dismissing appellants' appeal from dismissal of a dependency proceeding for lack of jurisdiction is vacated.

A review of the pertinent history of this appeal is necessary here. On January 5, 1981, in the presence of his two children, Derek S. Grilz, then aged four, and Margaux A. Grilz, then aged one, Gordon L. Grilz shot and killed his wife, and the mother of his children, Linda Marie Grilz. Following the filing of criminal charges against him, the Arizona Department of Economic Security ("DES") filed a petition in the Juvenile Court of Yavapai County, Arizona to declare Derek and Margaux dependent minor children. On January 26, 1981, following a hearing on that petition, the court found the children to be dependent wards of the Yavapai County Juvenile Court. The court ordered continuation of custody with the DES pending a hearing on placement and ordered that home studies be done of the parties interested in custody of the children.

A placement hearing was held on March 31, 1981. All interested parties, except the children, were represented by counsel. On April 16, 1981, the court entered an order granting temporary custody to Mrs. Cavelaris, the maternal grandmother who resided in California, and rights of visitation to appellants, Mr. and Mrs. Collins, a paternal aunt and uncle.

On March 1, 1982, approximately two months prior to a scheduled judicial review of the placement, Mr. Grilz and the Collinses moved the court to appoint counsel for the children. They argued that appointment of counsel was mandated by A.R.S. § 8-225(E) because the prospective custodians, Mrs. Cavelaris and the Collinses, would each be pursuing their individual interests at the proceedings and not necessarily the best interests of the children. This motion was denied on March 31, 1982, on the ground that the

"logistics of appointing counsel for the children who are located in California would be non-productive for the Foster Care Review Board Hearing and the Judicial Review Hearing [set for May 3, 1982]. The Court will reconsider the motion, if renewed, at the Judicial Review Hearing."

On April 1, 1982 the hearing was continued until August 24, 1982 pursuant to the Collinses' motion for a change of custody and a request for home study.

On June 9, 1982, Mrs. Cavelaris filed a motion to be appointed guardian or, in the alternative, to be authorized to initiate guardianship proceedings in California. This motion was opposed by the Collinses and by Mr. Grilz. At the judicial review hearing on August 24, 1982, the court heard argument on Mrs. Cavelaris' motion for guardianship and the Collinses' motion for change of custody. At that time Mr. Grilz' counsel renewed his request for appointment of counsel for the children. The court promptly denied the request. On October 1, 1982, the court denied the Collinses' motion requesting change in custody and granted Mrs. Cavelaris' motion to be permitted to bring guardianship proceedings in California. The order stated that "[u]pon completion [of the guardianship proceeding in California] this Dependency Petition will be dismissed. At that point, the DES will also be relieved from any responsibility." On October 15, 1982, the Collinses filed an appeal from that order.

On January 11, 1983, Mrs. Cavelaris was made guardian in San Diego County, California. On January 31, 1983, she moved for termination of the dependency proceedings in Yavapai County. On February 4, 1983, the Collinses' appeal of the October 1, 1982 order was dismissed on the grounds that the order was not final and appealable. On April 25, 1983, the dependency proceedings were dismissed.

On December 30, 1983 the Collinses' timely appeal of the dismissal of the dependency proceedings was dismissed by the Court of Appeals for lack of jurisdiction. The Collinses petitioned this Court for review. We have jurisdiction to review the Court of Appeals' order pursuant to Ariz.Const. art. 6, § 5(3) and Ariz.R.P.Juv.Ct. 28.

I. APPEALABILITY OF DISMISSAL OF THE DEPENDENCY PROCEEDINGS IN YAVAPAI COUNTY

The Court of Appeals dismissed the Collinses' appeal of the juvenile court's order dismissing the dependency proceeding on the ground that it lacked jurisdiction to consider the appeal. The Court of Appeals said:

"The trial court's final order, which was subject to appeal, was its January 26, 1981 order finding the children dependent and placing custody with the Arizona Department of Economic Security. No appeal was taken from this order and the subsequent orders were special orders entered after final judgment which are not subject to review by appeal. See In The Matter of the Appeal in Pima County Juvenile Action No. J-35316, 24 Ariz.App. 384, 539 P.2d 188 (1975)."

Ariz.R.P.Juv.Ct. 24(a) provides that "[a]ny aggrieved party may appeal from a final order of the juvenile court to the Court of Appeals." What constitutes a final order in dependency proceedings is a question of first impression in this state. ¹ We find that the juvenile court's order dismissing the dependency proceeding in Yavapai County was a final order. Though the facts of In re Appeal in Pima County, Juvenile Action No. J-35316, 24 Ariz.App. 384, 539 P.2d 188 (1975), relied upon by the Court of Appeals, make it distinguishable from the instant case ² we find it necessary to examine and overrule Juvenile Action No. J-35316 to prevent further reliance on it.

Juvenile Action No. J-35316 involved appeal of a juvenile court order of January 10, 1975. That order affirmed an order of February 28, 1973 declaring appellant's minor children dependent and granting their custody to the DES and physical care to a married stepsister. Appellant, the children's natural mother, had sought to regain parental control. The trial court denied her request and she sought review in the Court of Appeals. The Court of Appeals held that she lacked the right to appeal because the January order was a special order entered after judgment rather than a final order. It said the only final order was the order of February 28, 1973, presumably because that order first established the arrangement at issue. In treating the February 1973 order as the only final, and therefore appealable, order, the Court of Appeals applied a very narrow, technical conception of what constitutes a final order. We find that conception inappropriate in cases involving the important and fundamental right to raise one's children. Juvenile Action No. S-933, supra; In re Appeal in Pima County, Juvenile Action No. S-111, 25 Ariz.App. 380, 543 P.2d 809 (1975), review denied, 113 Ariz. 247, 550 P.2d 625 (1976). From a practical perspective, each periodic review of a dependency determination is a new determination of whether or not a child is dependent. Therefore, orders declaring children dependent and orders reaffirming findings that children are dependent are final orders subject to appeal by aggrieved parties. 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, see A.R.S. § 8-515(C), (D). Though this may impose an additional burden on our Court of Appeals, it is a burden the Court of Appeals must bear in light of the fundamental right at stake. Because the Court of Appeals failed to recognize this in Juvenile Action No. J-35316, it is overruled.

In the instant case, the Court of Appeals once again assumed that dependency proceedings can have one and only one "final" order and that the January 26, 1981 order declaring the Grilz children dependent pursuant to A.R.S. § 8-201(11) was the final order. We have no doubt that the January 26 order was final. See In re Appeal in Pima County, Juvenile Action No. J-46735 v. Howard, 112 Ariz. 170, 540 P.2d 642 (1975). This is true notwithstanding the fact that a determination of dependency does not dispose of all matters correlative to that determination, such as assignment of legal custody. See Ariz.R.P.Juv.Ct. 16(e) ³ and A.R.S. § 8-241(A)(1). ⁴ 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 cared for. Whether determination of dependency and the concommitant award of custody are considered two separate actions--a dependency proceeding to determine if a child is dependent, and a custody proceeding triggered thereby--or two parts of a single action is unimportant. We will not spend our time making technical distinctions. What is important is the practical reality that an order declaring a child dependent affects a fundamental right and an order dismissing a pending award of child custody precludes further action in the dismissing court such that the party is effectively put out of court. An order that disposes of an issue such that it conclusively defines the rights and/or duties of a party in a dependency proceeding in the juvenile court of this state, such as an order declaring a child or children dependent and an order dismissing a dependency proceeding in toto, is a final order subject to...