IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JESSICAH C., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.P., Appellees.

No. 1 CA-JV 19-0207

Appeal from the Superior Court in Maricopa County

No. JD532456

The Honorable David K. Udall, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

John L. Popilek, P.C., Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Amanda Adams

Counsel for Appellee Department of Child Safety

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in 

which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

FILED 1-21-2020
JESSICAH C. v. DCS, J.P.

Opinion of the Court

2

¶1 Jessicah C. (Mother) appeals from an order granting a motion 

by the Department of Child Safety (DCS) to change physical custody of J.P., 

her dependent child. Although this court lacks appellate jurisdiction, 

treating Mother’s appeal as a petition for special action, this court accepts 

jurisdiction but denies relief.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2019, DCS filed a dependency petition alleging 

Mother was unable to parent J.P., who was not yet two years old, because 

of domestic violence and substance abuse. From that time forward, J.P. has 

been in DCS’ legal custody pursuant to a court order. For a time, however, 

J.P. remained in Mother’s physical custody.

¶3 At a June 2019 hearing, Mother did not contest the 

dependency allegations. As a result, and after reviewing the dependency 

petition and a DCS report, the court found J.P. dependent as to Mother.

Mother does not challenge that dependency finding, or the resulting 

disposition adopting a family reunification case plan. Instead, she seeks to 

appeal from an order granting DCS’ motion, made at that same hearing 

after the dependency finding, to change physical custody of J.P. from 

Mother to DCS.

¶4 When making that motion, counsel for DCS asked whether

the court would like oral argument or testimony on the motion. When the 

court asked whether Mother objected to the motion or wanted written 

filings, Mother’s counsel responded, “my client does object to the change of 

physical custody and request[s] a hearing. So if the Court doesn’t have a 

time for the hearing today, I would request a hearing or I’m ready to 

proceed with oral argument,” adding “[w]hatever the Court prefers.” The 

court then heard oral argument.

¶5 Counsel for DCS explained that Mother had not consistently 

participated in drug testing and also tested positive for methamphetamines 

in May and June 2019. Although Mother requested a hair follicle test, she

missed the first appointment to provide a sample and refused to provide a 

sample at the second. Counsel for DCS argued there was no one in the home 

that could mitigate the safety risks created by Mother’s “ongoing substance 

abuse,” adding it was not in J.P.’s best interests to be at home with Mother.

¶6 In response, Mother’s counsel denied that Mother was using 

illegal substances, arguing “[she] is complying with her services.” Counsel 

further claimed Mother’s employment was the reason she missed the drug 

tests, asserting she was willing to undergo a hair follicle test.
JESSICAH C. v. DCS, J.P.

Opinion of the Court

3

¶7 The guardian ad litem joined in DCS’ motion, expressing 

concern about Mother’s use of methamphetamines and her refusal to 

provide a sample for a hair follicle test. Although Mother and the DCS case 

manager were present, no one testified. After hearing argument, the court 

granted DCS’ motion “[b]ased on Mother’s positive drug test and refusal to 

give a hair follicle” sample. Mother then timely filed a notice of appeal.

DISCUSSION

I. This Court Lacks Appellate Jurisdiction Over Mother’s Appeal.

¶8 This court has an independent obligation to determine 

whether it has appellate jurisdiction. Dabrowski v. Bartlett, 246 Ariz. 504, 511 

¶ 13 (App. 2019). If appellate jurisdiction is lacking, an appeal cannot 

proceed, and any decision in such an appeal would be void. See Legacy 

Found. Action Fund v. Citizens Clean Elections Comm’n, 243 Ariz. 404, 406 ¶ 9 

(2018) (citing cases).

¶9 Appellate jurisdiction is defined by statute. See, e.g., Campbell 

v. Arnold, 121 Ariz. 370, 371 (1979); Brionna J. v. Dep’t of Child Safety, 247 Ariz. 

346, 349 ¶ 7 (App. 2019). An aggrieved party may “appeal from a final order 

of the juvenile court.” A.R.S. § 8-235(A); accord Ariz. R.P. Juv. Ct. 103(A) 

(“Any aggrieved party may appeal from a final order of the juvenile court 

to the court of appeals.”). “But, ‘[n]either the rules nor the statute define a 

final order for purposes of appeal.’” Francisco F. v. Ariz. Dep’t of Econ. Sec., 

228 Ariz. 379, 381 ¶ 7 (App. 2011 (quoting Rita J. v. Ariz. Dep’t of Econ Sec., 

196 Ariz. 512, 513 ¶ 2 (App. 2000)). As the party seeking to appeal, Mother 

has the burden to show this court has appellate jurisdiction. See Ariz. R.P. 

Juv. Ct. 106(A) (stating Ariz. R. Civ. App. P. 13(a)(4), which requires a 

statement of appellate jurisdiction, applies to juvenile appeals).

¶10 In claiming this court has appellate jurisdiction over her 

challenge to the order changing physical custody of J.P., a dependent child, 

Mother cites Jewel C. v. Dep’t of Child Safety, 244 Ariz. 347, 350-51 ¶ 8 (App. 

2018), and In re Maricopa Cty. Juv. Action No. JD-500116, 160 Ariz. 538, 542 

(App. 1989). Neither case shows that appellate jurisdiction is present here. 

¶11 Jewel C. held that an order granting a motion to change a 

dependent child’s physical custody was not a “final order” from which an 

appeal could be taken. 244 Ariz. at 351 ¶¶ 7-8. In doing so, Jewel C. repeated 

that “[a] final order is one ‘that disposes of an issue such that it conclusively 

defines the rights and/or duties of a party in a dependency proceeding.’” 

244 Ariz. at 349 ¶ 3 (quoting Francisco F., 228 Ariz. at 381 ¶ 7). Mother’s 

appeal here does not challenge such a “final order.” Brionna J., decided 
JESSICAH C. v. DCS, J.P.

Opinion of the Court

4

more recently and discussed more fully below, rejected the “final order” 

analysis in JD-500116. 247 Ariz. at 349 ¶ 10. In short, the cases cited by 

Mother do not show this court has appellate jurisdiction over her appeal. 

¶12 Arizona appellate opinions have not spoken with one voice 

about what constitutes a “final order” from which an appeal can be taken 

in a juvenile matter. Compare In re Yavapai Cty. Juv. Action No. J-8545, 140 

Ariz. 10, 14–15 (1984) (stating, in finding an order dismissing a dependency 

is appealable, “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”) with In re Pima Cty. Juv. Action No. S-933, 135 

Ariz. 278, 280 (1982) (stating, in reinstating an appeal from an order

granting severance, “[a] final order is one which ends the proceedings, 

leaving no question open for further judicial action”). Dependency and 

disposition orders are appealable. Lindsey M. v. Ariz. Dep’t of Econ Sec., 212 

Ariz. 43, 45 ¶ 8 (App. 2006) (“[A] dependency disposition order . . . is a final, 

appealable order.”). Mother, however, did not appeal from the dependency 

or disposition order; her appeal is from the order changing physical 

custody of J.P., issued after the dependency finding.

¶13 Several opinions have found appellate jurisdiction lacking for 

similar challenges to orders changing physical custody of dependent 

children. Those opinions conclude such orders are not “final orders” subject 

to appeal, but that they could be challenged by special action. See, e.g.,

Brionna J., 247 Ariz. at 349-50 ¶¶ 9-12 (order denying motion for change of 

physical custody from placement to parent is not a “final order”); Jewel C.,

244 Ariz. at 350 ¶ 8 (order granting motion for change of physical custody 

from one placement to another is not a “final order”); In re Maricopa Cty. 

Juv. Action No. J-57445, 143 Ariz. 88, 92 (App. 1984) (same). But see In re 

Maricopa Cty. Juv. Action No. JD-500116, 160 Ariz. 538, 542-53 (App. 1989)

(order changing physical custody was a “final order” under prior rule); Gila 

River Indian Comm. v. Dep’t of Child Safety, 238 Ariz. 531, 533 ¶ 7 (App. 2015) 

(without discussion, exercising appellate jurisdiction over order denying 

motion to change physical custody). Although Brionna J. was an appeal by 

a parent, 247 Ariz. at 347 ¶ 1, these other cases finding appellate jurisdiction

was lacking involved appeals by individuals other than a parent, see Jewel 

C., 244 Ariz. at 349 ¶ 1 (appeal by great-grandparent); No. J-57445, 143 Ariz. 

at 89 (appeal by foster placement). But Section 8-235(A), which is the 

claimed basis for appellate jurisdiction here, does not suggest that the 

definition of a “final order” turns on who is seeking to appeal. 
JESSICAH C. v. DCS, J.P.

Opinion of the Court

5

¶14 Particularly instructive are cases in which a parent has filed a 

motion to return a dependent child to that parent’s care. See Ariz. R.P. Juv. 

Ct. 59. Even then, the order resolving such a motion is not a “final order”

from which an appeal can be taken. See Brionna J., 247 Ariz. at 349–51 ¶¶ 8–

14 (ruling on a Rule 59 motion is not a “final order,” meaning a party 

seeking to challenge the order must seek special action relief). If that order 

is not a “final order” from which an appeal can be taken, it is difficult to see 

how, applying the same statute, the order Mother seeks to challenge here 

would be a “final order” from which an appeal can be taken.

¶15 “[B]ecause dependency proceedings implicate the ‘important 

and fundamental right to raise one’s children,’” this court does “not apply 

a ‘narrow, technical conception of what constitutes a final order’ under 

A.R.S. § 8-235(A).” Brionna J., 247 Ariz. at 349 ¶ 8 (quoting J-8545, 140 Ariz. 

at 14). Instead, this court must consider “the practical effect” the order

would have. Maricopa Cty. Juv. Action No. JD-5312, 178 Ariz. 372, 374 (App. 

1994) (citing J-8545, 140 Ariz. at 14). Like other orders changing physical 

custody of dependent children, the order Mother seeks to challenge here 

“does not . . . change a child’s dependent status,” and does not have a 

“‘substantial impact’ on a parent’s ability to participate in services.” Brionna 

J., 247 Ariz. at 349–50, ¶ 10. The order changing physical custody also does 

not “purport[] to be conclusive.” Id.

¶16 None of this is to say that review by this court should not be 

available. It should. And where appropriate, review by this court should be 

available on an expedited basis. “Given the fluid, time-sensitive nature of 

placement determinations,” id. at 350 ¶ 14, and given there is no “equally 

plain, speedy, and adequate remedy by appeal,” Ariz. R.P. Spec. Act. 1(a), 

review by special action is appropriate. Indeed, review by special action is 

preferable because it allows an accelerated review by this court. 

¶17 For these reasons, this court lacks appellate jurisdiction over 

Mother’s appeal. However, given the interests involved, including the best 

interests of a child, this court in its discretion construes Mother’s appeal as 

a petition seeking special action relief and accepts special action 

jurisdiction. See Brionna J., 247 Ariz. at 350 ¶¶ 13-14; A.R. v. Dep’t of Child 

Safety, 246 Ariz. 402, 405 ¶ 5 (App. 2019) (“Even if jurisdiction by appeal is 

lacking, this court has the ‘discretion to consider the matter as a special 

action.’”) (citation omitted).
JESSICAH C. v. DCS, J.P.

Opinion of the Court

6

II. Mother Has Shown No Reversible Error.

¶18 Mother argues her due process rights were violated when the 

court granted DCS’ motion “without notice or an evidentiary hearing.” 

Mother contends she lacked notice of the allegations in the motion, and, as 

a result, she was not able to adequately prepare for the hearing. Mother also 

argues that she did not have an opportunity to be heard in a meaningful 

manner and that she was entitled to an evidentiary hearing, not just oral 

argument. Mother, however, waived any claim that the court deprived her 

of due process when it ruled without taking evidence because she explicitly 

agreed to proceed with the motion on oral argument alone.

¶19 “Waiver is either the express, voluntary, intentional 

relinquishment of a known right or such conduct as warrants an inference 

of such an intentional relinquishment.” Am. Cont’l Life Ins. Co. v. Ranier 

Constr. Co., 125 Ariz. 53, 55 (1980). Waiver occurs through “acts inconsistent 

with an intent to assert the right.” Id.; accord Aleise H. v. Dep’t of Child Safety, 

245 Ariz. 569, 572-73 ¶¶ 11-13 (App. 2018) (citing cases). Although Mother 

initially objected to the motion for change of physical custody and 

requested a hearing, Mother’s counsel then stated she was “ready to 

proceed with oral argument.” This statement to the superior court that

Mother was “ready to proceed” by way of oral argument is inconsistent 

with her argument now that she was denied a right to an evidentiary 

hearing. Agreeing to an oral argument without any indication Mother was 

unprepared to do so also is inconsistent with later asserting a lack of notice.

¶20 The record does not suggest Mother offered to testify or 

present evidence. Neither did she make an offer of proof or otherwise 

identify potential evidence she might offer. The court has substantial 

discretion when considering evidence concerning the placement of 

children. See Ariz. R.P. Juv. Ct. 56 (stating a court “may consider evidence, 

in the form of testimony or documents”). The court considered the evidence 

in the record, including the DCS report provided earlier in the hearing, and 

arguments offered before granting the motion. Mother has not shown how 

the lack of an evidentiary hearing caused her prejudice.

¶21 Mother is bound by the assertions of her counsel; she “cannot 

gamble on the court’s ruling by submitting a matter without objection and 

then, following an adverse ruling[,] complain.” Hale v. Brown, 84 Ariz. 61, 

65 (1958). By offering to proceed with the motion and stating she was ready 

for oral argument, Mother waived any claim that the failure to provide her 

a full evidentiary hearing deprived her of due process.
JESSICAH C. v. DCS, J.P.

Opinion of the Court

7

CONCLUSION

¶22 Treating Mother’s appeal as a petition for special action, this 

court accepts jurisdiction but denies relief.