NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

BRITTANY W., RYAN W.

, Appellant s ,

v.

DEPARTMENT OF CHILD SAFETY, H.W., B.W., S.W., A.W.

, Appellees

.

No. 1 CA

- JV 17

- 0427

Appeal from the Superior Court in Maricopa County

No. JD 530762

The Honorable Karen L. O’Connor

, Judge

AFFIRMED

COUNSEL

Law Office of Bernard P. Lopez, Goodyear By Bernard P. Lopez Counsel for Appellant Brittany W.

Vierling Law Offices , Phoenix By Thomas A. Vierling Counsel for Appellant Ryan W. FILED 3-1-20182

Arizona Attorney General’s Office, Phoenix By Jennifer L. Holder

C ounsel for Appellee Department of Child Safety

Law Office of Heidi P. Zoyhofski, Gilbert By Heidi P. Zoyhofski Guardian Ad Litem for Appellee Children H.W., B.W., S.W., A.W.

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Patricia A. Orozco 1 joined.

C R U Z

, Judge:

¶1 Brittany W. (“ Mother ”) and Ryan W. (“ Father ”) challenge the superior court’s order granting a motion for change of physical custody of

the ir children to Washington. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Father are the parents of four minor chi ldren:
H.W., born in 2008; B.W., born in 2010; S.W., born in 2013; and A.W., born

in 201 6 (collectively “the children”). On March 29, 2017, the Department of Child Safety (“ DCS ”) filed a dependency petition for the children, alleging they were dependent as to Mother and Father due to substanc e abuse and neglect, mental illness, and domestic vi olence.

¶3 DCS alleged that Mother and Father were arrested on March 24, 2017 for selling drugs out of thei r home and child endangerment. The children reported that people would be in and out of the home at all times of the day, and DCS alleged the parents neglected the children and placed them at risk by exposing them to criminal a ctivity and drugs in the home. It was reported that Mother engaged in multiple suicide a ttempts and

Father stated i n Ma rch 2017 that he was going to commit suicide. In addition, it was reported that Mother was sexually abused as a teenager

and Father suffered mental breakdowns. Finally, it was reported that the

1 The Honorable Patricia A. Orozco, r etired Judge of the Court of Appeals, Division One, has been authori zed to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.BRITTANY W., RYAN W. v. DCS, et al.

Decision of the Court

3 paren ts had domestic violence issues; the children reported seeing M other hit Father, and Father reported that he previously pled guilty to domestic violence and was taking classes. In addition to DCS’s allegations in the petition, there were concerns regarding a January 2017 incident whe n Father appeared to hit Mother’s car with his vehicle while under the influence of drugs an d alcohol, while A.W. was in the vehicle. It was alleged that at the time of the accident, the other children were at their grandparents ’ house due to an incident of domestic violence that occurred the previous day, in which Father reportedly held a knife close to Mother’s face while she was holding A.W. Temporary custody was granted to the

maternal grandmother.

¶4 On April 3, 2017, the court affirmed the temporary custody order, finding “it is contra ry to the welfare of the child(ren) to be returned to or placed in the custody of the parent/guardian . . . based on the alleg ations in [DCS’s] petition[.]” A guardian ad litem (“GAL”) w as appointed for the children. The court ordered that, if no placement could be found in Arizona, DCS should expedite an Interstate Compact for the Placement of Children (“ICPC”) referral to the State of Washington , where the children’s paternal aunt and uncle reside

. Two weeks later, DCS moved to change physical c ustody of the children to the pa tern al grandmother

, who also resided in Washington

. The court granted DCS’s motion, and set the contested dependency hearing for August 24, 2017. Although the paternal grandmother initially moved the children to Washington

, with verbal authorization from DCS and on a temporary basis, there were delays in processing the ICPC

.

¶5 At a July 2017 Foster Care Review Board update , Mother stated she graduated from a substance

- abuse treatment course , completed

a six

- week parenting cou rse, she and Father were participating in individual and couple therapy, and that her criminal case was “scratched,” as there was not enough evidence to proceed. Father stated that he had tested negative for all substances, except marijuana, but that he h ad a medical marijuana card and was pursuing alternative treatments to marijuana. Father stated he was employed and had paystubs for
verification, had attended substance

- abuse treatment, attended parenting
classes, and was nine weeks into a domestic viole nce course. Both parents stated they sp eak with the children frequently and try to spend as much time with them as they can. The DCS case manager stated the children were

anxious to return home and verified much of what Mother and Father had

stated. The Board noted its concern that neither party provided documentation regarding the criminal matter, but otherwise was pleased with the pare nts’ participation in services.BRITTANY W., RYAN W. v. DCS, et al.

Decision of the Court

4 ¶6 In August

, the GAL became aware that DCS, without a court order, moved the children bac k into the parents’ home on August 3. In her
motion to show cause, t he GAL advised the court that DCS failed to expedite the ICPC reques t as ordered and requested an expedited hearing. DCS argued that it moved the children back into the home, with a safety plan, as ICPC had not been approved and DCS believed the parents’ progress indicated it was a better option than foster care. DCS t hen mov ed for a change of physical custody to return the children to th e parents’ home.

¶7 The GAL questioned the reasons the children were returned to the parents’ home, given DCS’s failure to complete the ICPC and the fact no evidentiary finding was made that a return of custody would be in the

children’s best interests. D CS opposed the GAL’s motion , asserting that moving the children to Washington would impede the goal of reunification, although DCS also noted it had received mixed messages from the parents regarding their desire for the children to remain in Arizona or be mo ved to Washington under a guardianship. In its motion, DCS attached an August 11 report detailing a meeting it held on August 2 with the parents and paternal grandmother to discuss the parents’ opposition to move the children to Washington instead of in

- h ome placement with the appointment of a safety monitor. DCS stated that because no ICPC was completed, the children were not set up to receive services in Washington. Paternal grandmother then returned to Washington and left the children

behind in Arizon a with Father and Mother.

¶8 In late August, the court denied DCS’s motion to change physical custody back to the parents. The court affirmed its previous order granting custody of the children to paternal grandmother, 2 but allowed the children and grandmoth er to stay with Mother and Father for the next week

while the ICPC was completed. The court did not receive a permanency plan and thus could not conduct a corresponding hearing. The court continued the dependency hearing to September 26

.

2 The minute entry was later corrected to affirm placement with grandmother “ until the children can be placed with paternal aunt and uncle in Washington pursuant to th e [ICPC] ” as was previously discussed. It seems from the record the intention was always to place the children in Washington upon the completion of the ICPC, as discussed in t he court’s April 3 minute entry, and as was stated in open court at the August 2 4

conference.BRITTANY W., RYAN W. v. DCS, et al.

Decision of the Court

5 ¶9 The GAL moved to change physical custody to paternal aunt

a nd uncle, and requested an expedited hearing, claiming DCS was not acting in the children’s best interests

.

¶10 On September 15, 2017, at an expedited conference, the court granted the GAL’s motion to change physical custody of the children , and

in so doi ng affirmed its August 24 order to place the children with their paternal aunt and uncle in Washington, pursuant to the ICPC. The court found the change would be the least restrictive placement consistent with

the needs of the children; no specific findings of fact were otherwise made. The court noted its concern that, despite services, “the children are suffering” and “continue to suffer while the parents are doing these

services.” The court ordered DCS and the p arents to continue family reunification services with the children in Washington, and ordered DCS to facilitate contact with the parent s, supervised by the placement.

¶11 Father and Mother timely appealed. An order for change in physical custody is appealable

, Maricopa Cty. Juv. Action No. JD

- 500116 , 160
Ariz. 538, 542

- 43 (App. 1989), and we thus have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8

- 235 and 12

- 120.21, and Arizona Rule of Procedure for the Juvenile Court 88. 3

DISCUSSION

¶12 S ection 8

- 514.02 allows child ren to be placed with a parent, a relative, or a person who has a significant relationship with the children. We review the superior court’s determinations for an abuse of discretion

, Owen v. Blackhawk , 206 Ariz. 418, 420, ¶ 7 (App. 2003), but review alleged

constitutional violations de novo

, State v. Hargrove , 225 Ariz. 1, 13, ¶ 42 (2010). The superior court has broad discretion in determining the placement of a dependent child. Antonio P. v. Ariz. Dep’t of Econ. Sec. , 218

Ar iz. 40 2 , 404, ¶ 8 (App. 2008). The court’s primary consideration is the health and safety of the children. Id. ; Alexander M. v. Abrams , 235 Ariz. 104,

10 7

, ¶ 15 (2014); A.R.S. § 8

- 845 (B)

. In addition, t he court is required to

consider the best interests of the children at every stage of dependency.

Alexander M.

, 235 Ariz. at 107, ¶ 15.

¶13 Father and Mother challenge the court’s order on the grounds it effectively terminated visitation and prevented proper reunification

services.

3 DCS did not submit a brief, but it stated that it support s Mother ’s and Father’s position.BRITTANY W., RYAN W. v. DCS, et al.

Decision of the Court

6 ¶14 Parents have a fundamental right to the care, custody, and management of their children; however, this right is not without its limits. Kent K. v. Bobby M. , 210 Ariz. 279, 284, ¶ 24 (2005). Based on harm to the children, DCS may remove the children from their parents’ home, and place them accordingly. Alexander M. , 235 Ariz. at 106

- 08, ¶ ¶ 11

- 18

.

¶15 Granting a change in physical custody is not the same as denying visitation or terminating visitation rights. Compare Juv. Action No.
JD

- 500116 , 160 Ariz. at 54 2, with Maricopa Cty

. Juv. Action No. JD

- 5312 , 178
Ariz. 372, 373

- 74 (App. 1994). A change in physical custody may have such “a substantial impact on the natural [parent’s] practical ability to have any contact with [their child ren ]” that it may hinder vi sitation, however, this

does not in itself terminate visitation. Juv. Action No. JD

- 5001 1 6 , 160 Ariz. at 542 (considering whether a change in physical c ustody is an appealable order).

¶16 The court’s order did not terminate visitation, nor did it

prevent reun ification; by contrast, the court ordered DCS and the parents

to continue with reunification services and ordered DCS to facilitate contact between the parents and children. The fact the children were moved to Washington was not the result of a dependency determination or a termination of parental rights, but w as due to the absence of a suitable placement in Arizona during proceedings

. Because visitation was not at issue, we do not address whether specific findings were required to

determine if visitation would pose a risk of harm to the children. See Michael M. v. Ariz. Dep’t of Econ. Sec. , 202 Ariz. 198, 201, ¶ ¶ 11

- 13 (App. 2002).

¶17 Father argues there was insufficient evidence to order a change in phy sical custody to the children. In addition, Mother contends the court violated her due process rights when it ordered the change in physical custody, as the court did not conduct an eviden tiary hearing on

the matter.

¶18 The court c onducted a pretrial conference on Augu st 24, 2017,

at which Mother’s and Father ’s counsel informed the court of the services the parents had completed. The parents then argued that placement with

the m would pose no harm to the children. The court denied the parents’ motion to change physical custody back to them.

¶19 On September 11, i n the GAL’s motion for expedited hearing,

the G AL discussed a September 9 meeting to whi ch she did not attend,

between the paternal grandmother, children, parents, and case manager.BRITTANY W., RYAN W. v. DCS, et al.

Decision of the Court

7 The GAL claimed DCS and the parents discussed placement in front of the

c hildren, with the DCS case manager stating they merely asked the children their preference. After asking the children their preference, the case manager and parents then discussed concerns regarding future

reunification.

¶20 At the September 15 status confere nce, the GAL argued DCS was not acting in the children’s best interests. The GAL advised the court two of the children were displaying signs of extreme stress. The GAL specifically asked that the children be placed with their paternal aunt and

uncle in W ashington. DCS stated it could not remember the court order placing the children in Washington upon ICPC completion

. Mother’s counsel argued placement in Arizona with the parents was in the children’s best interests, as they were enrolled in school, had lived in Arizona for the past three years at the time, and had friends. Mother’s counsel also argued placement in Washington was not in the children’s best interests as their
medical doctors were in Arizona, and as it related to B.W., she had a pediatr ici an in Arizona familiar with her special medical condition. Father’s counsel also opposed placement in Washington and advised the court of the steps Father had completed towards reunification. No evidence was taken, and Mother’s counsel objected to eviden ce in the absence of an evidentiary hearing. The court affirmed its previous orders and granted the GAL’s motion to change physical custody of the children to paternal aunt and uncle in Washington.

¶21 While the parties dispute that a motion to change physica l custody of the children to Washington was ever filed, they ignore that the original court order was for the children to be moved to Washington upon completion of the ICPC, if no plac ement could be found in Arizona. By denying the parents’ August 14 moti on to return the children to their custody, the court implicitly found there was a risk the children would
suffer substantial harm, the change was not in their best interests, and the change was in contrast to their health and safety , and the record suppor ts the court’s ruling

. See I n re CVR 1997 Irrevocable Tr

. , 202 Ariz. 174, 177, ¶ 16 (App. 2002) (stating that when no specific findings of fact are requested, the court may presume the trial court found every fact necessary to sustain its ruling and will affirm if reasonable evidence supports the decision).

¶22 While DCS states that it found placement w ith the parents to be safe, the record reflects the highly questionable steps DCS took in this

case. The record reveals DCS did not process the ICPC referral, unilaterally decided placement in Washington was not in the children’s best interests, and place d the children back in parents’ home without a court order. TheBRITTANY W., RYAN W. v. DCS, et al.

Decision of the Court

8 court’s preliminary hearing ordered DCS to expedite the ICPC referral to Washington if no suitable placement could be found in Arizona, and the court then placed the children with the grandmo ther, who resided and lived with the children in Washington. Confusion regarding whether the children were to be placed with paternal grandmother or with aunt and uncle in Washington upon completion of the ICPC does not vindicate DCS’ s decision to return the children to parents’ home, nor does it vindicate DCS and the parents discussing placement in front of the children and asking them their preference , nor making any of these decisions without advising the court or the children’s legal representative, th e GAL. The GAL presented evidence that DCS was aware of the ICPC delay in July yet did nothing to bring the matter to the court’s attention until after the GAL advised the court in August that DCS had moved the children back into the parents’ home.

¶23 The co urt’s order changing physical custody to the paternal aunt and uncle in Washington did nothing more than affirm the court’s initial placement orders . Further, the court’s September 15 minute entry affirming its previous orders placing the children in Wash ington found the

children would suffer harm if returned to the parents and thus that placement in Washington was in their best interes ts.

¶24 The record similarly does not reveal that Mother’s due process rights were violated. Due process entails the opportunity to be heard at a meaningful time and in a meaningful manner. D ep’t of Child Safety v. Beene , 235 Ariz. 300, 305, ¶ 11 (App. 2014). A lthough no formal evidentiary hearing was conducted, no such hearing was required. See Ariz. R.P. Juv. Ct. 46(C) (“The court may rule on the motion, with or without a hearing[.]”)

. The court’s order was not a determination establishing dependency or terminating parental rights, it was merely an order considering placement of the child re n during proceedings. Further, the record established that Mother’s and Father’s counsel presented argument opposing the motion at the conferences on August 24 and September 15 and could have sought to present e vidence, but instead objected to the

introdu ction of testimony or evidence. We hold the record contains

sufficient evidence that the court considered the children’s interests and that it did not deny Mother and Father their due process rights.BRITTANY W., RYAN W. v. DCS, et al.

Decision of the Court

9 CONCLUSION

¶25 For the foregoing reasons, we affirm the court’s order granting the motion for change in physical custody of the children.