GILBERT C. v. DCS, and K.C.

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO GILBERT C., Appellant, v. DEPARTMENT OF CHILD SAFETY AND K.C., Appellees. No. 2 CA-JV 2017-0104 Filed August 28, 2017 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County No. JD20170274 The Honorable Dean Christoffel, Judge Pro Tempore REVERSED AND REMANDED COUNSEL Joel B. Feinman, Pima County Public Defender By Nicholas Knauer, Assistant Public Defender, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety GILBERT C. v. DEP’T OF CHILD SAFETY Decision of the Court MEMORANDUM DECISION Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Kelly1 concurred. S T A R I N G, Presiding Judge: ¶1 Gilbert C., father of K.C., an infant, appeals from the juvenile court’s dependency adjudication, challenging only that portion of the court’s order denying his request for visitation with K.C. at the Pima County Jail.2 For the reasons set forth below, we reverse and remand. ¶2 The Department of Child Safety (DCS) filed a dependency petition and petition for paternity on May 1, 2017. In the petition, DCS asserted K.C. was at risk of physical abuse by Gilbert based upon serious physical injuries he allegedly had inflicted on her then-three-year-old half-sibling, who at that time remained hospitalized in “critical condition.” At a May 4, 2017, preliminary protective hearing, Gilbert requested visitation with K.C., explaining that family members would transport her to the jail for video visits with him. Citing Michael M. v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 198, ¶ 8, 42 P.3d 1163, 1165 (App. 2002), Gilbert argued he has a constitutional right to visitation with K.C. DCS objected to “having a 1 The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. 2Gilbert and K.C.’s mother, who is not a party to this appeal, were not married. Although the record does not show that Gilbert’s paternity has been established, K.C.’s mother claims he is named as the child’s father on her birth certificate. See A.R.S. § 25-814(A)(3) (man presumed to be father of child born out of wedlock if birth certificate signed by mother and father). We therefore assume without deciding that Gilbert is entitled to challenge the juvenile court’s denial of his request for visitation with K.C. 2 GILBERT C. v. DEP’T OF CHILD SAFETY Decision of the Court six month old go to the jail and do video visits,” asserting “it’s to satisfy the father’s need rather than the child’s need.” At the May 4 hearing, the juvenile court ordered “no visits [with Gilbert] at the present time,” and affirmed its ruling in an unsigned minute entry. ¶3 Gilbert filed a motion for reconsideration, asserting the juvenile court could deny a parent’s constitutionally-protected visitations rights with his child only if the visits endanger the child, see id. ¶¶ 8, 11, and requesting the court conduct a hearing on his motion for visitation at the upcoming status adjudication hearing. On May 18, the court denied Gilbert’s motion for reconsideration, without explanation in an unsigned order. At the May 19 status adjudication hearing, the court again denied Gilbert’s request for visitation, and it confirmed its ruling in a signed minute entry filed the same day.3 This appeal followed.4 ¶4 A juvenile court’s visitation order is a final, appealable order. See Lindsey M. v. Ariz. Dep’t of Econ. Sec., 212 Ariz. 43, ¶ 7, 127 P.3d 59, 61 (App. 2006); In re Maricopa Cty. Juv. Action No. JD-5312, 178 Ariz. 372, 374, 873 P.3d 710, 712 (App. 1994) (“juvenile court’s order terminating visitation is a final order because it conclusively defines appellant’s rights regarding visitation of her children”). We review the court’s visitation order for an abuse of discretion. See Michael M., 202 Ariz. 198, ¶ 1, 42 P.3d at 1163. ¶5 Gilbert is correct that an incarcerated parent retains the right to reasonable visitation with his child. Id. ¶ 8. And, “[i]t is generally presumed to be in a child’s best interest to have visitation 3Gilbert pled no contest to the dependency petition that alleged he was unable to parent K.C. based on neglect and abuse, and K.C. was adjudicated dependent as to him at the May 19 hearing. At that same hearing, DCS served Gilbert with a petition to terminate his parental rights to K.C., and the juvenile court ordered a concurrent case plan of reunification and severance and adoption. 4 We declined to accept jurisdiction of Gilbert’s petition for special action in this matter. Gilbert C. v. Christoffel, No. 2 CA-SA 20170041 (Ariz. App. June 26, 2017) (order). 3 GILBERT C. v. DEP’T OF CHILD SAFETY Decision of the Court with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate.” Id., quoting Thomas v. Thomas, 715 N.Y.S.2d 818, 819 (N.Y. App. Div. 2000) (alteration in Michael M.). Although “[t]he decision to limit visitation rests in the juvenile court’s discretion, . . . that discretion is not wholly unfettered.” Id. ¶ 11, citing Maricopa Cty. No. JD-5312, 178 Ariz. at 37576, 873 P.3d at 713-14. However, when the juvenile court determines, in the exercise of its discretion, that “visitation endangers the child,” it may restrict or terminate a parent’s rights. Id. ¶ 11. ¶6 Relying on Michael M., Gilbert argues the juvenile court abused its discretion by failing to make any findings of fact or conclusions of law that K.C. would be endangered by visiting him at the jail, and contends, in any event, that the record was “insufficient to justify denial of visitation.” DCS agrees the court abused its discretion, asserting it “failed to articulate a basis for the orders denying [Gilbert’s] requests for visits” or for “finding that visits would be harmful.” DCS thus concedes “this Court should vacate the denial [of visits with K.C.] and remand the matter to the juvenile court for an order articulating a basis for the denial.” We accept DCS’s concession of error, and without expressing any opinion whether Michael M. calls for the required findings the parties maintain the court should have made, we remand so the court may determine whether there is sufficient evidence to support a finding that permitting K.C. to visit Gilbert at the jail would endanger her. See id. ¶¶ 11, 13.5 ¶7 Accordingly, we reverse and remand the juvenile court’s order of May 19, 2017. 5 We also offer no opinion concerning the outcome of the juvenile court’s inquiry on remand. 4

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