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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

BRITTANY W., RYAN W., Appellants,

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. JD530762

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 3-1-2018
2

Arizona Attorney General’s Office, Phoenix

By Jennifer L. Holder

Counsel 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. Orozco1 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 

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

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Father are the parents of four minor children: 

H.W., born in 2008; B.W., born in 2010; S.W., born in 2013; and A.W., born 

in 2016 (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 substance abuse and 

neglect, mental illness, and domestic violence.

¶3 DCS alleged that Mother and Father were arrested on March 

24, 2017 for selling drugs out of their 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 activity and drugs in the home. 

It was reported that Mother engaged in multiple suicide attempts and 

Father stated in March 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, retired Judge of the Court of 

Appeals, Division One, has been authorized 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

parents had domestic violence issues; the children reported seeing Mother 

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 when

Father appeared to hit Mother’s car with his vehicle while under the 

influence of drugs and 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 contrary to the welfare of the child(ren) to be returned 

to or placed in the custody of the parent/guardian . . . based on the 

allegations in [DCS’s] petition[.]” A guardian ad litem (“GAL”) was 

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 custody of the children to the paternal 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 course, 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 had 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 violence course. Both parents 

stated they speak 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 parents’ 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 back into the parents’ home on August 3. In her 

motion to show cause, the GAL advised the court that DCS failed to 

expedite the ICPC request 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 then moved 

for a change of physical custody to return the children to the 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. DCS 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 moved 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-home 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 Arizona 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 grandmother 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 the [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 the court’s 

April 3 minute entry, and as was stated in open court at the August 24 

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 

and 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 doing 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 parents to continue family 

reunification services with the children in Washington, and ordered DCS to 

facilitate contact with the parents, 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 Section 8-514.02 allows children 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 

Ariz. 402, 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, 

107, ¶ 15 (2014); A.R.S. § 8-845(B). In addition, the 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 supports 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 542, 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 children]” that it may hinder visitation, however, this 

does not in itself terminate visitation. Juv. Action No. JD-500116, 160 Ariz. 

at 542 (considering whether a change in physical custody is an appealable 

order).

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

prevent reunification; 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 was 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 physical 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 evidentiary hearing on 

the matter.

¶18 The court conducted a pretrial conference on August 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 

them would pose no harm to the children. The court denied the parents’ 

motion to change physical custody back to them.

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

the GAL discussed a September 9 meeting to which 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 

children, 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 conference, 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 Washington. 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 

pediatrician 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 evidence 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 physical 

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 placement could be found in Arizona. By 

denying the parents’ August 14 motion 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 supports 

the court’s ruling. See In 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 with 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 placed the children back in parents’ home without a court order. The 
BRITTANY 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 grandmother, 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, the 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 court’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 Washington found the 

children would suffer harm if returned to the parents and thus that 

placement in Washington was in their best interests.

¶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. Dep’t of Child 

Safety v. Beene, 235 Ariz. 300, 305, ¶ 11 (App. 2014). Although 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 children 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 evidence, but instead objected to the 

introduction 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.