FRANCISCO G. v. ADES, et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS DIVISION ONE STATE OF ARIZONA FILED: 10/04/2012 DIVISION ONE RUTH A. WILLINGHAM, CLERK ) BY: sls FRANCISCO G., ) 1 CA-JV 12-0040 ) Appellant, ) DEPARTMENT E ) v. ) MEMORANDUM DECISION ) (Not for Publication ARIZONA DEPARTMENT OF ECONOMIC ) Ariz. R.P. Juv. Ct. 103(G); SECURITY, THUNDER B., STORMY B., ) ARCAP 28) ) Appellees. ) ) Appeal from the Superior Court in Maricopa County Cause No. JD11820 The Honorable Colleen McNally, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Larson Law Office PLLC By Robert L. Larson Attorneys for Appellant Mesa N O R R I S, Judge ¶1 Francisco juvenile court s argues the G. order juvenile ( Father ) timely terminating his court should have appeals parental ordered from the rights. He the Arizona Department full, of Economic independent Security ( Department ) psychological evaluation to of provide his a mother ( Grandmother ) as a preliminary step to determining whether a kinship placement with her was in the best interests of his As we explain, we disagree. 1 children. FACTS AND PROCEDURAL BACKGROUND ¶2 In May 2010, the Department placed twins, Thunder B. and Stormy B., with a foster home. the court Fourteen adjudicated months the later, Father s parental rights. the Department to On the Department s motion, children the dependant Department moved as to to Father. terminate Father then asked the court to order conduct a psychological evaluation of Grandmother so she could be considered for kinship placement. The Department objected, and after oral argument, the juvenile 1 The Department argues the superior court s order denying Father s request for kinship placement was an appealable order and because Father did not separately appeal that order, we do not have jurisdiction to consider the issue he has raised on appeal. The Department s argument would be well taken if Father had actually moved for an unequivocal change in placement. Although Father s initial motion was titled Motion for Kinship Placement with Paternal Grandmother, what Father actually requested was an independent psychological evaluation of Grandmother. The record reflects the juvenile court denied that request and further refused to require the Department to evaluate Grandmother as a possible placement. That order was an interlocutory order and thus was not appealable. See Rita J. v. Ariz. Dept. of Econ. Sec., 196 Ariz. 512, 515, ¶ 8, 1 P.3d 155, 158 (2000) (order is interlocutory if it directs inquiry into matter of fact preparatory to final decision and is not final decision in the case). Thus, we agree with Father; this court has jurisdiction to consider the issue he has raised on appeal. 2 court denied Father s motion, but stated it would be willing to reconsider if regarding Father provided Grandmother s psychological/psychiatric it with additional conservatorship . . evaluation. . information and After . . . providing additional information, Father asked the court to reconsider its denial. After considering Father s additional information and the Department s objections to his request for reconsideration, the court refused to reconsider its denial. DISCUSSION ¶3 Father argues the juvenile court abused its discretion in failing to order the Department to conduct a psychological evaluation of Grandmother, thus precluding kinship placement of Thunder B. and Stormy B. with Grandmother. 2 ¶4 We discretion. review a placement order We disagree. for an abuse of See Maricopa County Juvenile Action No. JD-6236, 178 Ariz. 449, 451, 874 P.2d 1006, 1008 (App. 1994). A juvenile court abuses its discretion when the reasons given by the court for its action are clearly untenable, amount to a denial of justice. legally incorrect, or State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983). 2 Although Arizona Revised Statutes ( A.R.S. ) section 8-514(B) (2007) prefers placement with a relative over placement in foster care, placement according to the statutory preferences is not mandatory. See Antonio P. v. Ariz. Dept. of Econ. Sec., 218 Ariz. 402, 404, ¶ 8, 187 P.3d 1115, 1117 (2008). 3 ¶5 The record supports the grounds given by the juvenile court in refusing psychological to evaluation require of the Department Grandmother. The to conduct juvenile a court found the Department had provided a psychological consultation for Grandmother. The clinical psychologist who performed that consultation reported, I think that she has her hands full with all of her present duties and I think that CPS would want [to] consider an alternate placement for the children. The psychologist also noted Grandmother was verbose, with rambling and tangential thought processes. 3 The juvenile court stated that it share[d] the concerns raised by the Department that the psychological/psychiatric records Father submitted to the court about Grandmother were incomplete and failed to clearly address her ability or limitations due to her condition. ¶6 an Further, the court found Father s delay in requesting evaluation of Grandmother caused a situation where the children have been placed for more than 18 months in the home of foster parents who are willing to adopt them. Accordingly, the court concluded the best interests of the children would [not] be served by making a change in placement at this time and the scarce resources of the State of Arizona need not be utilized for the investigation of a placement that would not be in the 3 Although disputed, the court also found Grandmother failed to timely appeal the Department s decision to decline her kinship placement. 4 children s best interests. Given these circumstances, the juvenile court did not abuse its discretion in denying Father s request for a psychological evaluation of Grandmother. 4 CONCLUSION ¶7 We request for Additionally, affirm a the juvenile psychological because Father court s denial evaluation has not of contested of Father s Grandmother. the factual findings supporting termination, we affirm the juvenile court s order terminating his parental rights to the twins. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ JON W. THOMPSON, Judge 4 Because the juvenile court did not abuse its discretion in denying Father s request for a psychological evaluation of Grandmother, Father was not, as he argues in his reply brief, prejudiced in presenting evidence at the termination hearing. 5

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